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. I would therefore allow the appeal and set aside the sentence of 14 years. I would resentence the appellant to be imprisoned for a period of 10 years with a non-parole period of 7 years. The sentence and non-parole period should commence from 15 December 2010.
ANDERSON J.
Introduction
The appellant was 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 Act”).
A District Court judge sentenced the appellant to imprisonment for 14 years and fixed a non-parole period of 8 years and 6 months. The argument on this appeal against sentence is whether the sentence imposed was manifestly excessive.
The victim was the daughter of a woman who was in a relationship with the appellant. The offending for which the appellant was found guilty occurred between June 2004 and May 2007 when the victim was between 6 and 9 years of age. The victim lived with her mother. The appellant did not live with them permanently but often spent the night at their house. There were two children of the relationship between the appellant and the victim’s mother who also lived in the house.
In the particulars contained in the information it is alleged that the conduct of the appellant comprising the ongoing acts of sexual exploitation were:
(a)indecently assaulting (the victim) by touching her on her vagina, causing her to touch his penis, and pulling her pants down to expose her bottom;
(b)having sexual intercourse with (the victim) by inserting his finger into her vagina; and
(c)causing (the victim) to expose her body.
The particulars allege that the offences occurred between 22 June 2004 and 14 May 2007 and allege that the appellant “committed more than one act of sexual exploitation” against the victim over a period of not less than three days.
The appellant had two prior convictions for gross indecency and five prior convictions for indecent assault, all of which offences involved his nieces who were aged between 4 and 5 years. He was imprisoned for this offending and when released was involved in a Sexual Offenders Treatment Assessment Program (“SOTAP”) for approximately 16 months.
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.
A large part of the offending took place when the appellant, in a position of trust, went into the bedroom of the victim allegedly to feed a younger child who shared a bedroom with the victim and who needed mechanical assistance with her feeding. It was during the times that he went into the bedroom that he indecently assaulted the victim by touching and rubbing her vagina.
The appellant maintained his innocence throughout the trial and so the sentencing judge was faced with sentencing someone who showed no signs of remorse or contrition.
The arguments on appeal
Mr White, who appeared for the appellant, argued that the sentence was manifestly excessive for two reasons: first because the sentencing judge had not taken into account the appellant’s mental health at the time of the offending and second that by comparison with the leading authority of R v D (1997) 69 SASR 413 the sentence imposed went beyond what was reasonable.
(i) The suggested schizophrenia
Mr White tendered to the appeal court a report of a psychologist, Mr G. Ireland, dated 12 June 2010 which although given to the sentencing judge was not apparently read by him. In the end I do not consider that this matters. A report from Dr C. Raeside, a specialist psychiatrist, was before His Honour. Dr Raeside’s report of 3 February 2011 is referred to by the sentencing judge and it in turn refers to Mr Ireland’s report. In that report Dr Raeside points out the difference between the comments made by the appellant to Dr Raeside concerning his attendance at the SOTAP and what is contained in the report from the psychologist Mr Ireland.
At his trial the appellant said he was diagnosed with schizophrenia in 2001 and that he had been on medication ever since. Dr Raeside was not prepared to diagnose schizophrenia. The sentencing judge in his remarks, in referring to Dr Raeside’s report, said:
Although you appeared to him to have an order of underlying borderline and antisocial traits, he would not be inclined to make a diagnosis of personality disorder.
Mr White complains that the sentencing judge does not say precisely how he took Dr Raeside’s views into account. In my view the judge must have taken all of the comments of Dr Raeside which he has quoted in his sentencing remarks into account.
From the point of view of this appeal, the only possible relevance of this line of argument must be that it is said that the judge did not take sufficient account of the severity of the appellant’s mental problems, including a possible diagnosis of schizophrenia, in His Honour’s consideration of general deterrence. Mr White submits that the severity of the appellant’s mental problems is such that in relation to the appellant general deterrence is of less importance than normal.
In my view, the sentencing judge was entitled to take the view that the appellant is subject to the normal general deterrence principles. As Mr Illingworth pointed out, this is not like a case of severe brain damage or even some more limited mental impairment which would enable someone to claim a diminished responsibility. In my view there is nothing of substance in this argument, even if there was a diagnosis of schizophrenia.
(ii) The gravity of the offending
Mr White submitted that the judge wrongly took into account background offending as distinct from the offending the subject of the information, that is, the three particulars set out in the information.
He submitted that the judge incorrectly takes into account various uncharged acts of indecent touching of the victim by the appellant in sentencing. His Honour states in his sentencing remarks:
I am satisfied beyond reasonable doubt that you indecently assaulted [the victim] on numerous occasions over a number of years.
[Emphasis added]
It is submitted by Mr White that the judge in determining penalty has incorrectly considered acts which go beyond those for which the jury found the appellant guilty.
In my view, there is no weight to this argument. I refer to the discussion by Vanstone J in R v Livingstone [2011] SASCFC 28 at [25]-[29]. In particular, Her Honour states at [29]:
[29]In any event, the point I wish to make is that, if the judge took the view that an ability to fully particularise an incident meant that such an incident could not form part of the conduct comprising the acts of sexual exploitation for the purpose of s 50, then I respectfully disagree with him. In my view there is no reason why a charge against s 50 cannot be made up of conduct which can be adequately particularised as well as conduct which cannot.
I respectfully adopt Her Honour’s comments which were approved by White and Kelly JJ.
As Mr Illingworth for the respondent submitted, the offence of sexual exploitation cannot be looked at in the same way as individual charges for separate acts of indecent assault. He submitted that the offence was designed to encompass a broad range of offending over a period of time where there is an inability to particularise each and every event. I agree with his submission.
Persistent sexual exploitation is defined in the Act as follows:
50—Persistent sexual exploitation of a child
…
(2)For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
The decision in R v D has been regarded as a benchmark since its delivery. It is now part of the sentencing standards of paedophiles pursuant to s 29D of the Criminal Law (Sentencing) Act 1988 (SA).
Section 29D states:
29D—Sentencing standards for offences involving paedophilia
(1)The Parliament declares that—
(a) the 1997 amendment of sentencing standards reflected an emerging recognition by the judiciary and the community generally of the inherent seriousness of offences involving paedophilia; and
(b) the reformed standards should be applied to offences involving paedophilia committed before or after the enunciation of the 1997 amendment of sentencing standards (or committed in part before, and in part after, the enunciation of the 1997 amendment of sentencing standards).
(2)In this section—
1997 amendment of sentencing standards means the change to sentencing standards enunciated in R v D (1997) 69 SASR 413;
offences involving paedophilia means all offences to which the 1997 amendment of sentencing standards is applicable (whether individual sentences for the offences have been, or are to be, imposed or a global sentence covering a series of offences1 or a course of conduct involving a number of criminal incidents2).
reformed standards means sentencing standards as changed by the 1997 amendment of sentencing standards.
Notes—
1See section 18A of the Criminal Law (Sentencing) Act 1988.
2See section 74 of the Criminal Law Consolidation Act 1935.
Mr White argued that by comparison with R v D the sentence is manifestly excessive. He pointed to the offending in R v D and submitted that it was more serious than this offending. It is very difficult to compare the nature of offending in cases of sexual exploitation of minors. It is all very serious. A primary policy of the criminal law is to protect young people against such offending. Section 10(4) of the Criminal Law (Sentencing) Act 1988 states:
10—Matters to be considered by sentencing court
…
(4)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.
Mr White submitted that the 14 year head sentence was well outside the range which could be regarded as reasonable for this offending. I do not regard it as such because in my view there are compelling reasons why the judge chose a 14 year head sentence. These factors include:
(i)the breach of a position of trust;
(ii)the repeated violation of a young child regularly over a period of at least two years;
(iii)the impact on the young child and the subsequent breakdown of relationships within her family;
(iv)the lack of any remorse or contrition by the appellant;
(v)the previous offending of the appellant, again in a situation where there was a gross breach of trust.
(vi)the appellant’s failure to respond to the SOTAP.
The appellant was guilty of sexually violating his young victim on a regular basis. He placed himself in her bedroom with the excuse of feeding her younger step-sister and engaged in the acts described earlier by the judge of rubbing her vagina vigorously.
The helpless young victim waited each night knowing that the inevitable would happen. When it occurred it hurt and scared her. She was so concerned with the behaviour of the appellant that she actually took a knife to bed with her and placed it under her pillow. It seems to me that in those circumstances the submission that there was in this matter only one act of actual sexual intercourse is somewhat hollow.
In R v D, D’s offending was over a shorter period, with a background of no prior offending and in addition D gave himself up to the police and made full and frank admissions. In this matter the appellant offended over a longer period, denied his guilt and showed no signs of contrition or remorse.
The sentencing principles
The sentencing judge clearly had regard to R v D where Doyle CJ said at page 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. … That starting point will 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.
Mr Illingworth argued that there is no obvious error in the sentencing judge’s approach. I agree with that. The sentencing judge has dealt with all the relevant matters, has not taken into account any irrelevant matter and has properly directed himself on all appropriate sentencing principles. The question remains whether despite that the sentence is manifestly excessive.

Reference was also made to the decision of R v Pilling [2010] SASCFC 28 but I do not consider that that decision really assists in this matter.
The sentencing judge described the offending in this matter as “particularly heinous”. He said at page 5:
You sexually abused her over a number of years and you did so in her own home when you had a relationship with her mother, which included having two children together. Much of your abuse of B occurred in the same bedroom where your own daughter was being fed mechanically. I am satisfied that your actions were, as described by counsel for the DPP, “deliberate, intentional and calculated, evidence by the fact [that you] orchestrated the opportunity to be with [the victim] at night so you could commit sexual offences for your own sexual gratification”.
His Honour went on to say at page 5:
Your offending against [the victim] was not committed in isolation. It was a protracted course of conduct which caused [the victim] to suffer awful consequences, which included the breakdown of relationships within her family.
I agree with everything that the sentencing judge has said. However, I must decide whether the sentence imposed is higher than what I would regard as the high end of a range of appropriate sentences. Each matter must be considered on its merits.
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.
In the present case the basis of fact upon which sentence was imposed involved only one act of digital sexual intercourse with a child under the age of 12 years, combined with many acts of indecent assault which occurred over a number of years by touching and rubbing the area of the child’s vagina and causing her to touch the appellant’s penis and by the appellant pulling the child’s pants down.
That behaviour of course is most serious and a substantial term of imprisonment is appropriate. However I am of the view that a term of imprisonment of 14 years is outside the appropriate range.
I would allow the appeal and set aside the sentence of 14 years. On resentencing I would impose a head sentence of 10 years imprisonment. I would set a non-parole period of seven years.