R v Fleming - [2011] SASCFC 75

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FLEMING
[2011] SASCFC 75
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Anderson and The Honourable Justice David)
28 July 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appellant appeals sentence imposed by judge - appellant found guilty by a jury of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) - offending occurred over a three-year period commencing when victim was 6 years of age - appellant in a position of trust - appellant sentenced to 14 years imprisonment with non-parole period of 8 years and 6 months - whether sentence was manifestly excessive - whether sentence went beyond what was reasonable by comparison with the leading authorities - whether sentencing judge erred in failing to take into account the appellant's mental health in considering that the appellant is subject to normal general deterrence priniciples.
Held (Nyland and David JJ - Anderson J dissenting): appeal allowed - sentencing judge had appropriate regard to psychologist's report and was entitled to take the view that normal principles of general deterrence apply - however, notwithstanding the gravity of the appellant's offending the sentence imposed is too high and outside the appropriate range - head sentence is reduced to 10 years with a non-parole period of 7 years.
Criminal Law Consolidation Act 1935 (SA) s 50 (1); Criminal Law (Sentencing) Act 1988 (SA) s 10(4) and s 29D, referred to.
R v Livingstone (2011) 109 SASR 380, applied.
R v D (1997) 69 SASR 413, discussed.
R v Pilling [2010] SASCFC 28, considered.

R v FLEMING
[2011] SASCFC 75

NYLAND J: I have read the reasons of Anderson J. I agree with his conclusion that the sentencing Judge had appropriate regard to the report of Dr Raeside (which included a reference to the report of Mr Ireland) and that the Judge was entitled to take the view that normal principles of general deterrence applied.
Section 10(4) of the Sentencing Act provides that the primary policy of the criminal law is to protect children from sexual predators and that the paramount consideration with respect to any sentence for an offence involving the sexual exploitation of a child is the need for deterrence. It is evident from the history of this matter as set out by Anderson J in his reasons that this was a serious and prolonged course of offending by the appellant with little to be found in his favour by way of mitigation. In those circumstances a substantial penalty was required. However, notwithstanding the gravity of the appellant’s conduct, I agree with David J for the reasons expressed by him that the sentence in this case was too high and outside the appropriate range.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Fleming

Details

AGLC: R v Fleming [2011] SASCFC 75
Case: [2011] SASCFC 75
Decision Date: 28 July 2011

CaseChat Overview and Summary

In the matter of R v Fleming, the appellant appealed against the sentence imposed by the judge, having been found guilty by a jury of persistent sexual exploitation of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The offending occurred over a three-year period, commencing when the victim was 6 years old, and the appellant was in a position of trust. The appellant was sentenced to 14 years imprisonment with a non-parole period of 8 years and 6 months. The court was required to decide whether the sentence was manifestly excessive or inadequate, and whether the sentencing judge erred in failing to take into account the appellant's mental health in considering that the appellant is subject to normal general deterrence principles.

The court found that the sentencing judge had appropriately considered the psychologist's report and was entitled to take the view that normal principles of general deterrence applied. However, the court concluded that despite the gravity of the appellant's offending, the sentence imposed was too high and outside the appropriate range. The head sentence was reduced to 10 years with a non-parole period of 7 years. The court found that the previous term of imprisonment and the course of treatment in the SOTAP appeared to have had no effect on the appellant, and he seemed unable to appreciate the significance of being placed in a position of trust and then abusing young children.

The court acknowledged the difficulty of comparing sentences in cases of this nature. However, the court found that the sentence in this case was outside the appropriate range, despite the gravity of the offending. The court considered the decision of this Court in R v D, which held that 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. The court found that the facts of this case, heinous as they were, were far less serious than the postulated behaviour in R v D.

In conclusion, the appeal was allowed, and the head sentence was reduced to 10 years with a non-parole period of 7 years. The court found that the sentence imposed was too high and outside the appropriate range, despite the gravity of the offending. The court found that the appellant was subject to the normal principles of general deterrence and that the sentencing judge had appropriately considered the psychologist's report.

Orders

Orders of the court

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Background

Background to the litigation

It is noteworthy that this offending, that is the subject of this appeal, commenced shortly after the appellant completed that program.Background The details of this offending are summarised in the sentencing remarks of the sentencing judge and are not challenged. For convenience I will set out the details of the offending from His Honour’s sentencing remarks:The three acts of sexual exploitation alleged were that you committed a number of indecent assaults on B, that you caused B to expose her body and that you performed sexual intercourse on B by inserting your finger into her vagina. By its guilty verdict the jury must have been satisfied that two of those acts were proved beyond reasonable doubt. I am satisfied beyond reasonable doubt that all three were proved and, in respect of the indecent assaults, I am satisfied beyond reasonable doubt that you indecently assaulted B on numerous occasions over a number of years by touching and rubbing the area of her vagina, by causing her to touch your penis and by pulling her pants down.B told the jury that after you met her mother you became ‘girlfriend and boyfriend’. You would visit her home often. Your visits increased over time, although you never moved in to live with her mother. You did, however, sleep over. She told the jury that at first she got along ‘quite all right’ with you. She said that later she did not like you because of what you were doing to her.B told the jury that you and her mother had two children together and therefore she had two step-siblings, a sister and a brother.B told the jury that after her sister was born she and her brother were in the kitchen of the house with you. You asked her if she would show her ‘bum’ to you. When she said ‘no’ you tried to pull her pants down. She tried to stop you but you were too strong for her. You pulled her pants down exposing her bottom. When she pulled them up, you said to her brother, your son, for him to pull his pants down. When B said ‘Don’t do it’, you pulled his pants down. You then pulled your own pants down.B told the jury that at some time you took over the feeding of her sister when her sister was sleeping in the same room as she. Her sister needed a machine to help her feed. B told the jury that you would come into the room at 9 o’clock and put a lamp on. After you turned the machine on, you would rub B’s vagina. You would rub it hard and for some seconds. You would rub it on top of her pyjama pants, but underneath her bedclothes. When you did that she felt uncomfortable and scared. B told the jury that this happened most nights when you stayed at the house. She said that you always did it in the same or a similar manner. She said it went on for a long time.B told the jury that on one occasion when you came into her bedroom, where she and her sister slept she heard the floorboards creak. She heard the machine being turned on and then she heard a zipper go down. She said that you then grabbed her hand really hard and she touched something wet. She felt something wet on one of her fingers. Her mother then yelled out ‘Hurry up’ and you then went out of the room. This incident is what was alleged to be your indecent assault of B by causing her to touch your penis.B told the jury of the last incident that occurred at her house involving you. She had been in a bathroom and she came out of it with a towel wrapped around her. She saw you so she walked quickly to her room to get changed. She told the jury that you then ‘barged in and … ripped the towel off me and I tried to keep it on, but he was too strong so I sat down in front of my mirror on the floor, trying to cover myself and he asked “What is that?”, and I said “I don’t know” and then he put his pinky inside my vagina’. B told the jury that when you asked her what that was, you pointed at the ‘hole of (her) vagina’. She said that when all that happened she was sitting on the floor of her room by her mirror. She said she was referring to your little finger when she referred to your ‘pinky’. She said she knew you put your little finger in her vagina because she saw it. She told you to stop and that it hurt.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J

The sentencing judge had the advantage of seeing and hearing the appellant who gave evidence in his trial. The judge was able to assess his complete lack of contrition or remorse, the likelihood in the judge’s opinion of this man reoffending, the prospects of rehabilitation and the effect, if any, of the previous term of imprisonment.Conclusion In my view the head sentence, having regard to all the circumstances, is not so high as to warrant interference. In my view the non-parole period is also appropriate. The previous term of imprisonment for similar offending and the course of treatment in the SOTAP appear to have had no effect upon the appellant. He appears clearly unable to appreciate the significance of being placed in a position of trust and then abusing young children. He seems not to appreciate the effect his offending has on his victims. I make all these comments bearing in mind that this offence carries a maximum term of life imprisonment. I would dismiss the appeal. DAVID J: I have read the reasons of Anderson J. I respectfully adopt his summary of the background facts, the arguments on appeal and the sentencing Judge’s reasons. I also agree with Anderson J’s comments and conclusions on the appellant’s argument that the sentencing Judge did not deal adequately with the opinions of Dr Raeside concerning the appellant’s mental health problems. I agree with Anderson J’s conclusion that despite Dr Raeside’s evidence, the appellant is subject to the normal principles of general deterrence. I also agree with and support Anderson J’s view of the gravity of the offending and his conclusions that the sentencing Judge was entitled to sentence on the basis of various uncharged acts being included. However, I differ from Anderson J’s conclusion that the head sentence of 14 years imprisonment is not so high as to warrant interference. In my view, despite the gravity of the offending, it is outside the range of appropriate sentencing for offending of this type, serious as it is. I acknowledge that there are serious factors of concern which warranted a substantial term of imprisonment. These include continual violation of a young child over a period of two years, the breach of a position of trust, the previous offending of the appellant as set out in the sentencing remarks, and the lack of any remorse or contrition by the appellant. Nevertheless I am of the view that the head sentence is too high and outside the appropriate range. In coming to that conclusion I have given careful consideration to the decision of this Court in R v D[1]. I acknowledge, however, the difficulty of comparing sentences in cases of this nature.[1] (1997) 69 SASR 413. Mr White argues that the facts of this case, heinous as they are, are far less serious than the postulated behaviour in R v D, in which the court said 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.[2][2] (1997) 69 SASR 413 at 424, per Doyle CJ.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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