R v Frederick John Lewis No. SCCRM 93/189 Judgment No. 4053 Number of Pages 4 Criminal Law and Procedure (1993) 60 Sasr 582

[1993] SASC 4053

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ (1), DUGGAN(1) AND DEBELLE(1) JJ

CWDS
Criminal law and procedure - sentence - unlawful sexual intercourse with child - course of conduct over 5 years - victim between 5 years and 10 years of age during period of abuse - offender cohabiting with victim's mother - sentence of 5 years with non-parole period of 30 months increased on appeal by DPP to 8 years with non-parole period of 6 years.

HRNG ADELAIDE, 20 July 1993 #DATE 20:7:1993
Counsel for appellant:     Ms A M Vanstone
Solicitors for appellant:    Director of Public
   Prosecutions (SA)
Counsel for respondent:     Mr B J Tremaine
Solicitors for respondent: Russell and Russell

ORDER
Appeal allowed.

JUDGE1 KING CJ This is an application by the Director of Public Prosecutions for leave to appeal against sentences of imprisonment imposed for six crimes of unlawful sexual intercourse. 2. The respondent pleaded guilty to the six charges in the District Court and was sentenced to imprisonment for five years with a non-parole period of 30 months. There was a single sentence to cover all offences of which the respondent was convicted in exercise of the power conferred by s.18(a) of the Criminal Law Sentencing Act. 3. The respondent is 33 years of age. In 1986 he began living with the victim's mother. Only a few months after that cohabitation commenced the respondent commenced the course of sexual conduct, of which the crimes of which he has now been convicted are incidents. The victim was the daughter of the woman with whom the respondent was living. She was five years of age when the course of conduct commenced and was ten years of age when it ceased as a result of her complaint. 4. The course of conduct involved regular sexual activity consisting of fellatio and cunnilingus. Three of the crimes of which the respondent has been convicted are crimes of sexual intercourse by way of fellatio and three of them crimes of sexual intercourse by way of cunnilingus. 5. There are particularly unsavory features of the conduct of the respondent. He was in the habit of displaying to the victim blue movies containing pornographic scenes as well as pornographic still pictures in books or magazines. 6. The child was so far corrupted that she not only took money from the respondent, apparently as a reward for participating in the conduct, but came in the end to approach the respondent from time to time seeking money from him and offering sexual activity for that money. 7. The crimes of which the respondent has been convicted and the course of conduct which they represent are of the utmost gravity. They must have dominated the life of this little girl for five formative years of her life. It is evident from the victim impact statement that they have had a marked effect upon the life of the child, and it seems certain that the effects of such conduct during these formative years which must have dominated her life and become very much a way of life to her, must be lifelong. 8. There are factors which operate in favour of the respondent and which were taken into account by the learned sentencing judge. The respondent himself had a very unfortunate childhood. He had very bad experiences at the hands of his father, including both physical and sexual abuse, and no doubt those experiences had a lifelong impact upon his character and personality. Nevertheless, he is fully responsible for his actions. He is by no means an unintelligent man and must have appreciated by his own experiences that what he was doing to this little girl would have a lifelong effect upon her. 9. When the child made her complaint and the respondent became aware that the complaint had been made to the police he voluntarily contacted the police and sought an interview. He made a full confession, and indeed much of the detail of what occurred is known from his confession rather than from the statement of the child. He has pleaded guilty and has expressed and indeed shown contrition, not only by the full confession and the plea of guilty, but also by voluntarily seeking and undergoing treatment. 10. The respondent has prior convictions. None of them are for particularly serious or particularly relevant offences, but, nevertheless, he does not come to the court as a man of unblemished previous character. None of the previous offences are for sexual matters, but the respondent has admitted that on a prior occasion some years ago he sexually interfered with another child. The respondent, of course, is not to be punished for anything he has done in the past, but these matters are to be mentioned as indicating that he does not come to the court as a person of unblemished previous character. 11. The respondent stood in a relationship of care towards this little girl. He was living as the male in the household with the child's mother and therefore was, to that extent, standing in place of the child's father. He certainly had an obligation to care for and to protect her. He did not do so. On the contrary, he took advantage of that relationship to gratify his own sexual inclinations. That was a gross abuse of the position of trust in which he stood as a result of his relationship with the child's mother. 12. The community at large, as well as this court, can only view with abhorrence the sort of conduct in which the respondent engaged. It was a deliberate and persistent abuse of his position of trust engaged in over a period of years and beginning only very shortly after the commencement of the respondent's relationship with the child's mother. In such a case the need for the punishment to fit the crime, thereby marking society's condemnation of the conduct, and the need for deterrence of others who have children in their care and who are tempted to abuse their position of trust must take precedence over all other considerations. 13. The court must attach due weight to the factors which I have mentioned which operate in favour of the respondent, but it cannot allow them to outweigh the need for punishment which is proportionate to the gravity of the crime, and for the deterrence of others. 14. I am bound to say that in my opinion the sentence imposed by the learned sentencing judge is quite inadequate for those purposes. I have reached the conclusion that it is a manifestly inadequate sentence, and that in order to maintain proper sentencing standards this court must interfere. 15. If it were not for the plea of guilty, the co-operation of the respondent and the contrition which that manifests, as well as the factors associated with his own childhood experiences, I would have considered that a sentence of 12 years imprisonment was necessary in this case. 16. However, substantial discount can be made for the matters which I have mentioned, and I think that an appropriate head sentence would be imprisonment for eight years. The non-parole period must also reflect the need for adequate punishment and for deterrence, and I would fix a non-parole period of six years. It will be seen from the length of the proposed sentence and non-parole period that the sentence and non-parole period imposed by the learned sentencing judge were, in my opinion, quite disproportionate to the gravity of the crimes. I consider that the maintenance of a proper standard of punishment for child sexual abuse necessitates the interference of this court, in accordance with the well known principles governing appeals by the Director of Public Prosecutions. 17. In my opinion, therefore, leave to appeal should be granted. The appeal should be allowed. The sentence imposed should be increased to imprisonment for eight years with a non-parole period of six years, commencing on 29 April 1993.

JUDGE2 DUGGAN J I agree with the orders proposed by the Chief Justice and I agree with all that he has said in the course of his judgment. He has really said all that needs to be said in disposing of this matter, but because we are interfering with the sentence and increasing it to a significant degree, I think I should mention those matters which have particularly influenced my view in increasing the sentence. 2. As the Chief Justice has pointed out, these offences were part of a course of conduct which took place over a lengthy period of time. Indeed, the sexual relationship began within three or four months of the respondent moving in to live with the mother of the complainant. She was only five when the offences commenced. She could have had no real understanding of what the respondent was doing to her at this stage, but eventually she must have achieved some understanding of these matters which was acquired in the worst possible circumstances. 3. There are features in this matter which make it rather more serious than many of the matters involving similar offences which come before this court. The Chief Justice has referred to the use of pornographic movies as an aid in the commission of the offences and, in addition to that, the respondent took photographs of the child on some occasions in the course of the commission of the offences. Not surprisingly, all this has had serious adverse consequences for the child, far more harmful than if she had merely incurred some minor physical injury as a result of one of the incidents. There is little to mitigate these matters, apart from the fact that the respondent went to the police himself when he realised that he was going to be spoken to in any event. He cooperated with the police and he has pleaded guilty. That merits the substantial reduction which is appropriate in this case. But, in my view the sentence imposed by the learned trial judge was manifestly inadequate, in that she failed to give proper effect to the circumstances of aggravation to which I have referred, and in my opinion, the case calls for a heavily deterrent sentence. 4. Although I have borne in mind the strictures appropriate to appeals by the Director of Public Prosecutions, it is my view that the sentence must be interfered with, and after being appropriately moderated by reason of the cooperation with the police and the plea of guilty at the earliest opportunity, I agree, as I have said, that the head sentence must be increased to eight years, and the non-parole period to six years.

JUDGE3 DEBELLE J I agree with the reasons of the Chief Justice and Duggan J It follows that I agree with the order proposed by the Chief Justice.