R v ELLIOTT

[2016] SASCFC 11

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v ELLIOTT

[2016] SASCFC 11

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Nicholson)

25 February 2016

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - OFFENCES ARISING OUT OF SAME TRANSACTION OR COURSE OF CONDUCT

Appeal against sentence. The appellant was charged with two counts of aggravated indecent assault and one count of unlawful sexual intercourse with a person under 14 years of age. The appellant pleaded guilty to the charges. The timing of each plea was such that the appellant was entitled, pursuant to section 10C of the Criminal Law (Sentencing) Act 1988 (SA), to discounts of up to 30 per cent with respect to any sentence imposed for the two aggravated indecent assaults and of up to 40 percent with respect to any sentence imposed for the unlawful sexual intercourse. For the two aggravated indecent assaults, the Judge sentenced the appellant to a single term of imprisonment of three years and six months, reduced to two years and six months. For the offence of unlawful sexual intercourse, the Judge sentenced the appellant to five years imprisonment, reduced to three years. The sentences were to be served cumulatively.

The appellant appealed against the sentence imposed by the Judge on the grounds that the two sentences should have been made concurrent and that the sentences were manifestly excessive.

Held per Nicholson J (Peek and Blue JJ agreeing) allowing the appeal:

1.  As the circumstances of the case involved an unbroken course of very closely related conduct involving the one victim, the Judge erred in ordering that the two sentences were to operate cumulatively. On this basis, the appeal is allowed, the sentence of the District Court is set aside and the appellant is to be resentenced.

2.  In any event, the original sentence is to be regarded as manifestly excessive, given the need for substantial concurrency in the circumstances.

3. The appellant is resentenced; pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), to the one penalty for all three offences of imprisonment for three years with a non-parole period of 18 months. The sentence is backdated to commence on the day the appellant was taken into custody, 22 July 2015.

Criminal Law (Sentencing) Act 1988 (SA) s 10, s 10C, s 18A; Criminal Law Consolidation Act 1935 (SA) s 49, s 56, referred to.
R v Ahlburg [1994] SASC 4628; R v Horstmann [2010] SASC 103; R v Wooldridge [2015] SASCFC 125, (2015) 123 SASR 422; R v Copeland (No 2) [2010] SASCFC 61, (2010) 108 SASR 398; Pearce v The Queen (1998) 194 CLR 610; The Attorney-General v Tichy (1982) 30 SASR 84; R v Bagnato [2011] SASCFC 161, (2011) 112 SASR 39, considered.

R v ELLIOTT
[2016] SASCFC 11

Court of Criminal Appeal:   Peek, Blue and Nicholson JJ

PEEK J:

1. I agree with the orders proposed by Nicholson J and with his reasons.

   BLUE J:   

2. I agree with Nicholson J that the sentencing discretion miscarried, the appeal should be allowed, the appellant should be resentenced, and on resentencing section 18A of the Criminal Law (Sentencing) Act 1988 (SA) should be utilised for the reasons given by Nicholson J.

3. On resentencing, I would have adopted starting points of imprisonment for the three offences totalling more than the starting point of approximately four and a half years imprisonment, and would have imposed a sentence of imprisonment exceeding the sentence of imprisonment for three years, that Nicholson J (with whom Peek J agrees) would impose. However, as I otherwise agree that the appeal should be allowed and the appellant is to be resentenced in accordance with the view of the majority of the Court, I agree that, as the appellant is to be resentenced to imprisonment for three years, it is appropriate to fix a non-parole period of 18 months.

   NICHOLSON J:

   Introduction

4. The appellant has appealed against sentences imposed by a District Court Judge of imprisonment totalling five years and six months with a non-parole period of two years and nine months.  The appellant pleaded guilty in the Magistrates Court to two counts of aggravated indecent assault[1] and one count of unlawful sexual intercourse with a person under the age of 14 years.[2]  The indecent assaults were aggravated because the victim was under 14 years of age.

   [1] Contrary to section 56(1)(b) of the Criminal Law Consolidation Act 1935 (SA).

   [2] Contrary to section 49(1) of the Criminal Law Consolidation Act 1935 (SA).

5. The maximum penalty for each count of aggravated indecent assault is imprisonment for ten years and the maximum penalty for the count of unlawful sexual intercourse is imprisonment for life. The appellant’s pleas to the two indecent assaults and his plea to the offence of unlawful sexual intercourse were entered at different times. As a consequence, and bearing in mind the provisions of section 10C of the Criminal Law (Sentencing) Act 1988, the appellant was entitled to a discount of up to 30 per cent with respect to any sentence imposed for the two indecent assaults and a discount of up to 40 per cent with respect to any sentence imposed for the unlawful sexual intercourse. 

6. For the two indecent assaults, the Judge exercised the discretion available under section 18A of the Sentencing Act and started with a single penalty of imprisonment for three years and six months.  This was reduced to two years and six months on account of the pleas of guilty representing a reduction of approximately 28.6 per cent.  For the offence of unlawful sexual intercourse, the Judge started at five years imprisonment.  This was reduced to three years on account of the plea of guilty representing a reduction of exactly 40 per cent.  His Honour ordered the two sentences to be served cumulatively, a total period of imprisonment of five years and six months, and then fixed what the Judge described as a “lower than usual non-parole period” of two years and nine months. 

7. The appellant has raised the following two grounds of appeal.

   (i)Given that the offences were all part of a single, isolated episode, the sentences of imprisonment should have been made concurrent.

   (ii)The sentences were manifestly excessive.

   The circumstances of the offending

8. The appellant was, at the time, the proprietor of a food and drink shop in the Adelaide Hills.  The victim’s family and the victim were regular customers.  Shortly prior to the events the subject of the offending, the victim had stolen some chocolate bars from the shop.  She later attended at the shop, apologised and was forgiven.  Shortly after that, the victim lied to her mother about the appellant, admitted the lie and again attended at his shop to apologise.  The appellant again forgave her.  She hugged the appellant, kissed him on the cheek and told him that she loved him.  Some days later the victim again attended at the shop.  There was a discussion about the earlier conversation and the appellant asked her if she meant it when she said she loved him.  She said she did.  The appellant then kissed the girl and took her into the back room of the shop and locked the door.  As to what followed, I quote from the Judge’s sentencing remarks:

   Her clothes were removed, although there is a dispute about whether [the appellant] did that or [the victim] did that, and [the appellant] then committed Counts 1 and 2 two by licking [the victim] on the vagina and licking and kissing [the victim] on the anus.  [The appellant] rubbed [his] penis against [the victim’s] clitoris and the count of unlawful sexual intercourse was pleaded to on the basis that [the appellant’s] penis penetrated [the victim’s] labia during that act.

   The appellant was 34 and the victim was 13 at the time of the offending.  The offences committed against the victim were very serious indeed.  The two indecent assaults are to be regarded as being towards the high end of the spectrum of seriousness for offences of that nature.  The unlawful sexual intercourse, whilst also very serious, was perhaps towards the lower end of the spectrum of seriousness for offences of that nature.   

   The Judge’s sentencing remarks    

9. After outlining the circumstances of the offending in some detail, the Judge paid close attention to the appellant’s personal circumstances.  It is unnecessary to canvass these with the same level of detail in these reasons.  The appellant experienced various difficulties during his upbringing which, to his credit, have been overcome to an extent that the appellant, as an adult, has lived a productive and relatively settled life.  Since leaving school, the appellant has demonstrated a strong work ethic with a consistent employment history.  He spent 11 years in the regular army and served in Iraq for six months.  As a consequence, the appellant suffered from an adjustment disorder with anxiety and depressed mood and, ultimately, was found medically unfit to continue service in the defence forces.  The appellant continued to experience a number of difficulties both in his family life and psychologically throughout his adult years. 

10. The appellant has a limited prior criminal record but one which the Judge did not regard as being particularly relevant to the sentencing exercise before him.  I agree with that.  In particular, the appellant does not have any prior history of sexual offending.  The Judge also found that the offending for which the appellant was to be sentenced “was not premeditated in the sense that it did not involve grooming or other preparation, but rather occurred on a single occasion when the victim... attended at [the] store”. 

11. The Judge correctly, with respect, observed that the protection of children was a primary consideration when sentencing for this type of offending and that the criminal law “is designed to protect children from the predations of older men, and to protect children from themselves”. 

12. In this context the remarks of former King CJ bear repeating.[3]

    It is the purpose of the law prohibiting sexual intercourse with girls under the age of consent to protect young girls from the advances of men, older men in particular, and to protect them from their own immature inclinations.

    This principle should be rigorously applied in the present case.

    [3]    R v Ahlburg [1994] SASC 4628 at [17].

13. I also add that, as a consequence, there is a requirement to ensure that paramount consideration is given to the need for general and personal deterrence.[4] 

    [4] Section 10(2)(c) of the Criminal Law (Sentencing) Act 1988 (SA).

    The approach of the Appellate Court

14. It is sufficient for the present to refer to the remarks of Kourakis J (as his Honour then was) in R v Horstmann.[5]

    On an appeal against sentence, the Court of Criminal Appeal has no power to set aside or vary that sentence unless it is satisfied that the sentence is affected by an error of the type identified in House v The King[6]: a failure to take into account relevant matters; having regard to irrelevant matters; or unreasonableness (manifest excess or inadequacy).[7]  I shall refer to the first two errors as process errors and the last as an outcome error.  Where either a process error or an outcome error has been made, the Court of Criminal Appeal may interfere. 

    Plainly enough, in the case of an outcome error it is implicit in a finding of manifest excess or inadequacy that the Court of Criminal Appeal has formed the view that a different sentence should have been passed and it will vary the sentence accordingly.

    In the case of a process error, the Court of Criminal Appeal may yet refrain from interfering with the sentence if it thinks that the resulting penalty was appropriate notwithstanding the demonstrated error.  In such a case, the Court of Criminal Appeal will not vary the sentence if it thinks that the same or a higher sentence would be passed if it were to exercise the discretion itself.  However, where a process error is demonstrated, the Court of Criminal Appeal may reduce the sentence if in the exercise of its own discretion it considers that a lesser sentence is appropriate, even though the sentence under appeal is not manifestly excessive.

    [5] [2010] SASC 103 at [36]-[38].

    [6] (1936) 55 CLR 499 at 504-5.

    [7]    It needs to be emphasised that a failure to give adequate weight to a relevant matter is not in itself an appellable error; only a failure to have regard to it at all is an error which justifies interference with the discretion.  On an appeal against the exercise of the sentencing discretion, a failure to give adequate weight to a matter is only of any significance if it has resulted in an outcome error.

    The question of concurrency

15. A difficulty for the Judge when sentencing arose from the fact that an isolated single course of conduct which occurred over a relatively short period of time was analysed and charged by way of three separate offences rather than as one offence charged against a background of admitted conduct.  I recognise that the manner by which criminal conduct involving an ongoing series of events is to be charged is a matter essentially within the prosecutorial discretion.  However, the approach taken can produce an element of artificiality.  There was, I expect, other conduct engaged in by the parties here that might also have been charged as separate offences of indecent assault. 

16. Often, even where separate offences are charged, a judge can sentence for the overall course of criminal conduct without necessarily allocating notional sentences for each offence, by employing the discretion available under section 18A of the Sentencing Act to impose the one penalty for all offences.  Nevertheless, when undertaking this approach, a judge still must have regard to questions of accumulation, concurrency and, as appropriate, totality.  It may be necessary for the judge to indicate, at least in broad brush terms, the extent to which those considerations have been taken into account in arriving at the single penalty.[8]        

    [8]    See, generally, for example, R v Wooldridge [2015] SASCFC 125; (2015) 123 SASR 422 at [65]-[67], R v Copeland (No 2) [2010] SASCFC 61; (2010) 108 SASR 398 at [96]-[98].

17. This approach of moving directly to section 18A was not available to the Judge in this case.  The difficulty presented by charging three separate offences with respect to the one unbroken course of criminal conduct was exacerbated by the fact that the timing of the pleas gave rise to the availability of different maximum discounts.  Accordingly, the Judge was required to, at least in the first instance, and did, sentence for the two indecent assault offences separately from the unlawful sexual intercourse offence. 

18. In so doing the Judge was required to sentence for each component of the offending[9] against the background of the admitted course of conduct but ignoring the other component so as to avoid any element of double or excessive punishment.[10]  The Judge ordered that the two sentences arrived at after discounting each for the pleas of guilty were to be served cumulatively.   

    [9]    The two aggravated indecent assaults on the one hand and the unlawful sexual intercourse offence on the other.

    [10]   Pearce v The Queen (1998) 194 CLR 610.

19. In Pearce v The Queen[11] the plurality restated a central principle of sentencing.

    A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

    [11] (1998) 194 CLR 610 at [45] (Gummow, Callinan and Heydon JJ).

20. The Judge gave no reason for ordering cumulation.  It is not clear from the remarks that any consideration was given in this context to the circumstances of the offending which, according to relevant authorities, were such as would, ordinarily, call for an order for substantial concurrency.

21. The observations of the Court of Criminal Appeal in R v Wooldridge,[12] made with reference to the often cited remarks of Wells J in the Attorney-General v Tichy[13] are apposite.

    Section 31(1) of the Criminal Law (Sentencing) Act provides that a court may direct that a sentence imposed be cumulative upon any other sentence or sentences of imprisonment being, or to be, served by a defendant.  The principles underlying the exercise of a sentencing Judge’s discretion whether to order sentences to be served wholly concurrently, partially concurrently or wholly cumulatively have been recently examined, at some length, by this Court in a number of cases.[14]  However, the remarks of Wells J in The Attorney-General v Tichy are of particular assistance in this case.[15]

    It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively.  According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty.  But such a logic could never hold.  When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet.  But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct.  Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes.  Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community’s right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not.  Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice.  The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time.  What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty.  Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate.  Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient.  There are dangers in each course.  Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap.  Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.

    [12] [2015] SASCFC 125; (2015) 123 SASR 422 at [78] (the Court: Gray ACJ, Peek and Nicholson JJ).

    [13] (1982) 30 SASR 84 at 92-93.

    [14]   Including, for example, R v Copeland (No 2) [2010] SASCFC 61; (2010) 108 SASR 398 at [99]-[107] (Kourakis J, as his Honour then was), R v Bagnato [2011] SASCFC 161; (2011) 112 SASR 39 at [68]-[80] (Peek J).

    [15] (1982) 30 SASR 84 at 92-93 (emphasis added).

1. The present case is one where, whilst there were a “number of technically identifiable offences committed”, the appellant “was truly engaged upon one multi-faceted course of criminal conduct”.  Furthermore, whilst each of the starting points for the two sentences imposed might be seen as being within the appropriate range they are not to be described as particularly lenient. 

2. The present case is an illustration of the so called “one transaction rule”.[16]  There was an unbroken course of very closely related conduct involving the one victim and which took place over a very short period of time.  The Judge erred in ordering that the two sentences were to operate cumulatively.

   [16]   Discussed, with reference to the authorities, by Peek J in R v Bagnato [2011] SASCFC 161; (2011) 112 SASR 39 at [70]-[81].

3. I would allow the appeal on the basis of ground 1, set aside the sentence imposed in the District Court and resentence the appellant.  In the circumstances, it is not necessary to consider in any detail the second ground of appeal raising the question of manifest excess.  However, given that substantial concurrency was called for, the total period of imprisonment imposed is also to be regarded as manifestly excessive.  This is also apparent from the Judge’s total starting point of eight years and six months for the single course of conduct.

   Resentencing

4. The offending was very serious and whilst not a conventional breach of trust case, the appellant did breach the trust reposed in him by the family and the victim.  However, it was one isolated incident and the various personal considerations in favour of the appellant, as outlined in quite some detail by the Judge, suggest scope for leniency. 

5. Were I to sentence for each component of the offending, I would adopt the following approach. For the two indecent assaults, I would employ section 18A of the Sentencing Act to impose the one penalty.  I would start with imprisonment for three years but reduce that to 25.2 months after allowing a 30 per cent deduction for the plea.  For the offence of unlawful sexual intercourse, I would start with imprisonment for three years and six months but reduce that to 25.2 months after allowing a 40 per cent deduction for the plea.

6. I would order the sentence for the two indecent assaults be served substantially concurrently with the sentence for unlawful sexual intercourse.  In this case, full concurrency would not “adequately reflect the aggravated nature of each important feature of the criminal conduct”.[17]   

   [17]   The Attorney-General v Tichy (1982) 30 SASR 84 at 93.

7. Having identified my approach to sentence, including making proper allowance for the different maximum discounts available for the pleas and allowing for substantial concurrency, I would exercise the discretion available under section 18A of the Sentencing Act to impose the one penalty for all three offences.  I would sentence the appellant to imprisonment for three years.  The appellant’s personal circumstances, limited prior criminal record and good prospects for rehabilitation are such as to call for a moderate to low non-parole period.  I would impose a non-parole period of 18 months.

8. Notwithstanding the appellant’s personal circumstances and apparently good prospects for rehabilitation, the seriousness of the offending and the need for deterrence, particularly general deterrence, are such that I cannot find good reason to suspend the prison sentence.  I would backdate the head sentence and non-parole period to commence on the day the appellant was taken into custody, being the day he was sentenced in the District Court, 22 July 2015.