R v Garrett - [2005] SASC 58

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GARRETT
Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Besanko and The Honourable Justice White)
23 February 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE
Appellant pleaded guilty to one count of indecent assault and three counts of unlawful sexual intercourse - Male victim aged between 15 and 16 years - Appellant made full admission of sexual relationship to police - Sentencing Judge imposed sentence of three years with non-parole period of one year - Judge declined to suspend sentence - Appeal against failure to suspend - Judge did not err in considering himself constrained to impose an immediate sentence of imprisonment - Sentence of imprisonment for offences of unlawful sexual intercourse may be suspended in an appropriate case - Decision to refuse to suspend sentence justified in this case - Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA), s 49, s 56; Criminal Law (Sentencing) Act 1988 (SA), s 18A, s 38, referred to.
House v The King (1936) 55 CLR 499, applied.
R v D (1977) 69 SASR 413;; R v P [2003] SASC 428; (2003) 87 SASR 287; R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231; R v Clifford [2004] SASC 344; R v Todd (1982) 2 NSWLR 517; Taylor v Police [2004] SASC 198; Norbis v Norbis (1986) 161 CLR 513; R v Port of London Authority; Ex parte Kynoch Ltd [1919] 1 KB 176; Wong v The Queen [2001] HCA 64; (2001) CLR 584; R v Temby [2003] SASC 230; Police v Hunt (Doyle CJ, 14 April 1997, Jdgt S6123, Unreported); R v Oberthur (Full Court, 25 September 1988, Jdgt S6881, Unreported), considered.

R v GARRETT
[2005] SASC 58
Court of Criminal Appeal: Debelle, Besanko and White JJ

DEBELLE J This appeal should be dismissed. I agree with the reasons of White J.
BESANKO J: In my opinion this appeal should be dismissed. I agree with the reasons for judgment of White J.
WHITE J:
Introduction
This is an appeal against a sentence imposed by a Judge of the District Court on 16 July 2004.
The appellant pleaded guilty to one offence of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 and to three counts of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act. The offences occurred during a period of approximately eight months between 19 October 1991 and 18 June 1992. The victim of the offences was born on 3 May 1976 and was therefore aged between 15 years and five months and 16 years and one month at the time of the offending.
The sentencing Judge, using s 18A of the Criminal Law (Sentencing) Act 1988, imposed a single sentence of three years imprisonment for all of the offences. He said that but for the appellant’s plea of guilty and cooperation with the police, a head sentence of four years would have been imposed. The Judge fixed a non-parole period of one year.
The sentencing Judge declined to suspend the sentence.
The Appeal
There are two grounds of appeal. Both complain of the decision of the sentencing Judge not to suspend the sentence of imprisonment which he had imposed.
The Circumstances of the Offending
As can be seen from the above, the offending occurred more than 12 years before the appellant was sentenced. At the time of the offending the appellant was about 47 years of age.
The appellant was introduced to the victim by the victim’s grandmother who lived in the same block of units as the appellant. Towards the end of 1991 when the victim was about 15½ years old, he was requested by the appellant to clean the windows of his unit, both inside and out. Whilst he was inside the unit, the appellant commenced rubbing the victim’s arm and shoulder. This developed to a full body massage and to the touching of the victim in his groin area and then on his penis. The appellant masturbated the victim until he ejaculated. This conduct constituted the offence of indecent assault.
A few weeks after that incident, the appellant and his male partner participated in a form of “marriage ceremony”. The victim and his grandmother attended. Following that ceremony, the appellant and his partner had a holiday away. The appellant gave the victim the keys of the unit and requested him to look after it in his absence. During that absence, the victim took a cannabis plant, which he had been growing at his parents’ home, to the unit. Although the appellant was concerned when he found it upon his return, he permitted the cannabis plant to remain there.
The second and third offences (both unlawful sexual intercourse) occurred sometime later, and on the same day as each other. The victim called into the appellant’s unit, ostensibly on his way to school. Whilst there, the appellant undressed him, rubbed a lubricant on his penis and performed an act of fellatio. The appellant then obtained a vibrator which he inserted into the victim’s anus, causing him pain.
The fourth offence (unlawful sexual intercourse) occurred shortly afterwards. Again the victim called in to the appellant’s unit, ostensibly on his way to school. The appellant performed an act of fellatio on the victim.
The appellant accepted that the four offences to which he had pleaded guilty comprised part of a course of repeated conduct occurring during a period of eight months. The appellant accepted that similar conduct occurred “perhaps once a month” although the vibrator had been used on only one occasion.
The Plea of Guilty
The victim first reported the appellant’s conduct to the police in October 2002. When first questioned by the police in January 2003 the appellant admitted frankly to having had a sexual relationship with the victim. The appellant queried, however, the age of the victim at the time of the offending alleged by the police and the dates on which the offending was said to have occurred. He provided to the police lease agreements by reference to which the time of the offending could be ascertained. The victim subsequently acknowledged that the appellant was correct in that respect.
As can be seen above, the sentencing Judge allowed a discount of 25 per cent on account of the pleas of guilty.
The Effect on the Victim
The sentencing Judge was supplied with two Victim Impact Statements from the victim. The content of each was similar but not identical. The victim described shyness, anger and difficulty in intimate relationships which he attributes to the appellant’s conduct. In particular, he reported difficulties in his relationship with his grandmother who had introduced him, innocently, to the appellant. The victim also reported leaving school prematurely and having sought professional counselling and advice on numerous occasions.
The Refusal to Suspend the Sentence
After reciting in more detail the facts which I have summarised above, and some facts concerning the appellant’s personal circumstances, the sentencing Judge referred to the decision in R v D (1997) 69 SASR 413 in which the Chief Justice said that, for persons who, in the future, commit offences involving a course of conduct involving unlawful sexual intercourse with a child when in a position of trust and authority, sentences should be increased to a starting point of imprisonment of about 10 years, where the child is over 12 years of age, and about 12 years, when the child is under 12 years of age. The sentencing Judge noted that the offences were committed about five years before the decision in R v D and said that in that circumstance the heavier standard should not be applied.[1]
[1]The sentencing Judge referred to the decision of Mullighan J in R v P [2003] SASC 428; (2003) 87 SASR 287 at 301 [89] which referred in turn to R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231. See the summary in R v Clifford [2004] SASC 344 at [18] of the cases in which differing views on this point have been expressed.
The sentencing Judge accepted that the lapse of a lengthy period of time between offence and sentence might lead to considerations of fairness to an offender playing a greater role than would otherwise be the case and may also indicate rehabilitation of the offender. He accepted that the rehabilitation of the appellant which may have occurred since the offending was a factor relevant to the question of whether any sentence of imprisonment imposed should be suspended.[2]
[2] R v Todd [1982] 2 NSWLR 517; Taylor v Police [2004] SASC 198.
Section 38(1) of the Criminal Law (Sentencing) Act provides that a court may suspend a sentence of imprisonment if it thinks that good reason exists for doing so. In this case, in relation to suspension, the sentencing Judge said:
“While I have given anxious consideration to the suspension of [the] sentence, these offences were committed over too long a period for that to occur.”
After the sentencing Judge had passed sentence, and indeed, after the appellant had left the courtroom, the Judge said to the appellant’s then counsel:
“Mr Braithwaite, it was with reluctance that I imposed that sentence, but I felt constrained to. Should you be desiring to appeal against it, in these unusual circumstances, I am prepared to countenance bail pending that appeal.”
After some further discussion, the appellant was brought back into the courtroom and the Judge said:
“Mr Garrett, in your absence, I indicated to Mr Braithwaite the reluctance with which I imposed that penalty. I felt constrained to do so by virtue of the legal authorities to which I have referred.”
On the appeal, it was argued that the sentencing Judge had, in error, considered that decisions of this Court precluded, in the circumstances of this case, the exercise of the discretion pursuant to s 38(1) to suspend a sentence and further that the sentencing Judge was, in any event, in error in not suspending the sentence.
The decision whether or not to suspend a sentence involves an exercise of a discretion. Where the discretion has been exercised, this Court would interfere with that exercise only if satisfied that the sentencing Judge has made some error of principle or has failed to have regard to some relevant factor, or has had regard to an irrelevant factor or where it can be said that despite lack of identification of a precise error the sentencing discretion has miscarried: House v The King (1936) 55 CLR 499. However, that applies only if the discretion has been exercised. In the present case, the first complaint of the appellant is that the sentencing Judge wrongly considered that, by virtue of decisions of this Court, there was no scope for the exercise of the discretion in favour of the appellant.
It is clear enough that the discretion vested in a Judge by s 38(1) must be exercised according to the merits of a particular case. The discretion is not to be exercised inflexibly and without regard to the merits of the particular case. The exercise of the discretion in accordance with guidelines or so as to achieve consistency with the exercise in other cases is not precluded, provided always that the Judge has regard to the particular circumstances of each case.[3]
[3]Norbis v Norbis (1986) 161 CLR 513 at 519-520 per Mason and Deane JJ; R v Port of London Authority; Ex parte Kynoch Ltd [1919] 1 KB 176 at 184; Wong v The Queen (2001) 207 CLR 584 at 634-8 [138] – [147].
None of the four decisions of this Court to which the sentencing Judge referred are authorities for the proposition that suspension of a sentence of imprisonment imposed in respect of multiple offences of indecent assault or unlawful sexual intercourse would never be appropriate. In the case of R v D[4], and R v Liddy (No 2)[5], the question of possible suspension of the sentence of imprisonment was not discussed at all. In R v P[6], this Court dismissed an appeal against a refusal to suspend a sentence of imprisonment imposed on a 45 year old offender in respect of four counts of unlawful sexual intercourse and two counts of indecent assault committed on his daughters, then aged between eight and 12 years. The offences were representative of numerous assaults which occurred several times per week over a period of about two years. It appears that the sentencing Judge may have been particularly influenced by the judgment of Mullighan J in R v P. Having said that he would dismiss the appeal against the sentence of nine years imprisonment with a non-parole period of three years and six months imposed in that case, Mullighan J said:
“I have given anxious consideration to suspending the sentence, but I regard the crimes as too serious and having been committed over too long a period to suspend the sentence.”
The similarity of that paragraph with the reason given by the sentencing Judge for refusing to suspend the sentence in this case is to be noted.
[4] (1997) 69 SASR 413.
[5] [2002] SASC 306; (2002) 84 SASR 231.
[6] [2003] SASC 428; (2003) 87 SASR 287.
In Taylor v Police [2004] SASC 198, I allowed an appeal from a decision of a Magistrate refusing to suspend a sentence of imprisonment of three months imposed for a single offence of indecent assault committed some 21 years before the offender was sentenced.
In many cases, including R v D, the seriousness of offences of this type and the need for personal and general deterrence have been emphasised.[7] Those considerations in many cases have caused Judges to hold that suspension of sentences of imprisonment for offences of the present kind is inappropriate. However, there are other cases in which sentences of imprisonment have been suspended,[8] or at least, the suspension of the sentence imposed at first instance has not been disturbed on appeal.[9]
[7] See R v D (1997) 69 SASR 413 at 423 per Doyle CJ.
[8] For example, R v Temby [2003] SASC 230.
[9]Police v Hunt (Doyle CJ, 14 April 1997, Jdgt S6123, Unreported); R v Oberthur (Full Court, 25 September 1988, Jdgt S6881, Unreported).
In my opinion, there is no basis for thinking that decisions of this Court preclude altogether the suspension of a sentence of imprisonment imposed for an offence of the present type. It is not to be supposed that the sentencing Judge in this case held any other view.
In my opinion, the statement of the sentencing Judge after he had sentenced the appellant is to be understood as a recognition by him of the need, in accordance with the authorities to which he referred, for his sentence to reflect the seriousness of the appellant’s conduct and the need for general deterrence. The Judge considered that giving effect to those factors meant that suspension of the sentence was inappropriate. That is the only way in which the Judge felt “constrained”. An indication that this was the thinking of the sentencing Judge is seen in the reason he gave for refusing to suspend the sentence, viz., the relatively long period over which the offending had occurred. Because the offending for which the appellant was being sentenced had occurred during a course of conduct over a period of eight months, the appellant could not be granted the lenience which may have been appropriate if, for example, his offending was an isolated act committed in a moment of temptation and without opportunity for reflection. Viewed in this way, there is no error, in my opinion, in the approach of the Judge.
There are no grounds for interference with the exercise of the discretion to refuse to suspend the sentence. No error of the kind referred to in House v The King has been demonstrated. I acknowledge that there was much to be said for the appellant: several references as to his good character were provided to the sentencing Judge; the long period which had elapsed without further offending did suggest that rehabilitation had occurred; and the circumstances of the offending were a little unusual for offences of this kind in that the victim was older than usual and had, after the first offence, returned voluntarily to the appellant’s unit on several occasions. However, none of these matters was overlooked by the sentencing Judge. As noted above, the Judge had to have regard also to the seriousness of the appellant’s conduct and to the need for general deterrence. Those considerations well justified the refusal to suspend the sentence.
Even if this appeal had to be dealt with on the footing that the sentencing Judge failed to consider whether he should exercise his discretion to suspend the sentence and this Court had to sentence afresh, this is a case where the sentence should not be suspended. In this respect, I repeat the factors already identified in these reasons.
Conclusion
For the reasons given above, my opinion is that this appeal should be dismissed.