R v GIBBS - [2017] SASCFC 140

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GIBBS
[2017] SASCFC 140
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Bampton)
26 October 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The Director of Public Prosecutions applies for permission to appeal against a sentence imposed in the District Court for persistent sexual exploitation of a child and aggravated indecent assault. The respondent was sentenced to imprisonment for seven years and six months, with a non-parole period of three and a half years. The Director contends that the sentence is manifestly inadequate and departs from the standards set by this Court for offences of this nature.
Held: Vanstone J (Kourakis CJ and Bampton J agreeing). Permission to appeal is granted and the appeal allowed. The standards of sentencing for offences such as these were set down in R v D and were given legislative force by Parliament in 2005. If in sentencing a judge is to depart from those standards some explanation must be given. None was given in this case and neither was there any reason for such a departure.
The sentence imposed in the District Court involves a significant departure from the applicable standards, is manifestly inadequate and is set aside. In its place is imposed a single sentence of 11 years and nine months imprisonment, with a non-parole period of seven years.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 29D; Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA) s 8, referred to.
R v D (1997) 69 SASR 413; Wong v The Queen (2001) 207 CLR 584; Director of Public Prosecutions v Dalgliesh [2017] HCA 41; R v Bonython-Wright (2013) 117 SASR 410, considered.

R v GIBBS
[2017] SASCFC 140
Court of Criminal Appeal: Kourakis CJ, Vanstone and Bampton JJ

KOURAKIS CJ: I would grant permission to appeal and allow the appeal for the reasons given by Vanstone J. I would join in imposing the sentence her Honour proposes.
VANSTONE J: The Director of Public Prosecutions (SA) applies for permission to appeal against a sentence imposed in the District Court for persistent sexual exploitation of a child (whom I shall call V1) and aggravated indecent assault of V1’s younger sister, V2. The sentencing Judge imposed a single sentence of imprisonment for seven years and six months, with a non-parole period of three and a half years. The Director argues that the sentence is manifestly inadequate and significantly below the standards set by this Court for offences of this nature.
Background
The Information filed in the District Court on 8 July 2016 contained five counts. The first four of them alleged offences against V1 and count 5 related to V2. On the day which was to be the first day of his trial, the respondent pleaded guilty to counts 1 and 5. The pleas were entered on the basis of the victims’ interviews with police. Although counts 2, 3 and 4 were not proceeded with, they were alternative charges to count 1 and the resolution of the matter did not involve any abandonment of any allegation made by the victims against the respondent.
The respondent was the next door neighbour of V1 and V2 and their parents. They had lived adjacent to one another for about six years at the time the offending came to light. That occurred on 17 December 2015, when V2 made a complaint to her mother about the respondent’s conduct. The respondent was arrested on that same day in relation to offences against both children. At that time V1 was eight years of age and V2 was six years old.
About three year prior to the offending being reported the two victims began staying overnight from time to time at the house of the respondent and his wife. This came about as they often spent time playing at that house and had come to know the respondent and his wife. The parents of the two girls both worked and sometimes during school holidays the girls would spend time at the respondent’s home, which was of assistance to their parents. By that time the respondent and his wife had become trusted friends of the victims’ parents.
On the evening of 16 December 2015 the two girls stayed the night at the respondent’s home. The next morning he brought them home. The victims’ mother thought that V1 looked a little upset. The respondent gave an explanation for this which related to his granddaughter. However, after the respondent left, the victims’ mother spoke to both girls and that conversation elicited a complaint by V2 as to the conduct comprising count 5. That conduct was pulling down V2’s knickers and pushing a die (singular of dice) between her buttocks. The offending of which V1 complained, and which the respondent acknowledged by his later plea of guilty, comprised various activities occurring on a number of different occasions, extending over many months, when she was aged seven and eight years of age.
On the occasions when the girls stayed overnight at the respondent’s home, he would sleep with them in the living room. V1 described conduct including him undressing her as they lay on a blow up mattress and then kissing her, touching her breasts and buttocks, causing her to place a hand on his penis and to stimulate him, and penetrating her vagina with his tongue. V1 estimated that there were about 20 sleepovers in all. She said that this behaviour began to occur after the first few of those occasions. She said that the respondent did not touch her during the last two occasions when she stayed there. V2 described only the offending charged in count 5.
The respondent was 53 years of age at the time of sentence. His only prior convictions of any note were for three counts of theft, the first in 1987 and the second two in 1994. For the second pair of those the respondent received a three month suspended sentence. The Judge had regard to a psychological report in which the respondent was said to have taken responsibility for what occurred and expressed remorse. As a boy the respondent had spent time in a children’s home after the separation of his parents and had suffered physical abuse in that environment. The psychologist expressed the view that, provided the respondent submitted to various “treatment options”, the risk of future offending of a similar nature would be “low to moderate”.
In sentencing, the Judge utilised s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose a single sentence reflecting both offences. He took a starting point of nine years imprisonment and deducted 10 per cent to reflect the (late) pleas of guilty. In recognition of eight days spent in custody after the respondent’s arrest and about one and a half years on home detention bail leading up to the time of the pleas, the Judge further reduced that period by approximately seven months, leaving a head sentence of seven years and six months imprisonment. He fixed a non-parole period of three and a half years.
Arguments of appeal
The Director argues that the sentence is manifestly inadequate. He puts that it is outside the range of sentences customarily imposed for crimes of this nature and markedly so. That there should be reasonable consistency in sentencing is a requirement of justice. Failure to conform with the standards of sentencing established by this Court places at risk public confidence in the administration of justice. The Director argues that the inadequate sentence was arrived at because the Judge took a starting point which was too low. He argues that the standard set in this Court in R v D (1997) 69 SASR 413 at 424 for offending such as that against V1, in relation to one child is a starting point of about 12 years. Here, there was the additional offending against V2. Furthermore, the offending was unmitigated, apart from the late pleas. In all the circumstances there was no justification for selecting – without explanation – a starting point markedly lower than the standard. That led to a manifestly inadequate sentence.
Mr M Mead, for the respondent, argues that any standard fixed by this Court is necessarily a flexible one, as indeed the disposition in D’s case demonstrates. Counsel points out that here, there was no formal relationship of trust, there was no digital or penile penetration, and that the psychologist who examined the respondent found some reason in the respondent’s background to explain the offences, and considered that the respondent had genuine remorse for his actions.
Consideration
In Wong v The Queen (2001) 207 CLR 584 Gleeson CJ referred at [6] to the importance of consistency in sentencing:
One of the legitimate objectives of such guidance is to reduce the incidence of unnecessary and inappropriate inconsistency. All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.
The last part of this statement was quoted with approval in Director of Public Prosecutions v Dalgliesh [2017] HCA 41 by Kiefel CJ, Bell and Keane JJ.
The desirability of consistency in cases of child sexual abuse is only the greater having regard to the increasing numbers of such cases that have come before the courts in the last two decades or so. By legislative amendment to the Criminal Law (Sentencing) Act 1988 (SA), passed in 2005, Parliament gave legislative force to the standards set in R v D and provided that those standards should apply to offences committed both before and after that decision: s 29D, inserted by Act No. 31 of 2005, commencing 11 August 2005.
In R v Bonython-Wright (2013) 117 SASR 410 at 429, Kourakis CJ said, with the concurrence of Blue and Stanley JJ, that the standard should be applied unless explanation was given for why it should not apply. His Honour said:
[97] The primary purpose of the enactment of s 29D of the Sentencing Act was to legislatively abrogate the common law practice of courts forewarning the public of an increase in sentencing standards. That practice may have delayed the imposition of the standard enunciated in R v D and may have limited it to offences committed after that decision was handed down. However, the enactment of s 29D of the Sentencing Act also recognised the seriousness with which the community regards offences of that kind.
[98] It is not open to sentencing judges, nor to the Full Court, to adopt another standard unless and until the clear statement of principle in R v D is overruled or amended by a Full Court of five. Nonetheless, the sentencing standard retains the flexibility to which Doyle CJ referred. The discretion which the flexibility allows must be exercised judicially by reference to the standard, and not in a way which undermines it. The selection of a different starting point should be supported by reference to circumstances which distinguish the case at bar from the generality of cases to which Doyle CJ referred.
In the present case no explicit reference was made to any reason for departing from the applicable standard. The Judge referred to those aspects of the psychological report which favoured the respondent, including the hope that treatment could lessen the risk of future offending. However, the Judge also noted the serious nature of the offending. He said:
As against all that I need to balance, firstly, the very young age of both of these girls; secondly, the persistence of the offending with [V1], it was over a significant period of time; thirdly, the breach of the position of trust, not a formal position of trust like parent or step-parent but a de facto position of trust as a family friend and neighbour who regularly babysat and cared for the little girls.
Finally, the authorities which point to very significant custodial sentences for this type of offending, especially relating to a girl the age of [V1].
While it is understandable that, in deference to the feelings of victims, a sentencing judge might be reticent to enumerate those aspects of the offending which render it less serious than other crimes of its type, some explanation must be given for a decision to depart from standards set by this Court and endorsed by Parliament; unless, perhaps, the reason is self-evident.
No reason was given here and in my opinion there was nothing in this case to justify such a departure. The very circumstances highlighted by the Judge demonstrate that. In addition, the sentence needed to take into account that the respondent had more recently extended the ambit of his offending to encompass V2. Whether or not s 18A of the Criminal Law (Sentencing) Act 1988 (SA) was utilised, the sentence also had to reflect the offence against V2.
I consider that the sentence imposed involves a significant departure from the applicable standards against which it needed to be measured. It is manifestly inadequate to a marked extent. Interference by this Court is justified to maintain those standards and to correct the sentence. I consider that permission to appeal should be granted, the sentence quashed and a new sentence imposed.
In resentencing I would take a starting point of 12 years imprisonment for count 1. If count 5 stood alone, I consider it would justify a sentence of two years imprisonment. If s 18A of the Criminal Law (Sentencing) Act 1988 (SA) is to be utilised, I would add a period of one year to the starting point in recognition of the close connection between the two offences. I would use the discount of about 10 per cent chosen by the Judge to reduce the head sentence to 11 years and nine months. I would select a non-parole period at a greater ratio than did the Judge, as I can find no reason for the low proportion utilised by him. I would set the non‑parole period at seven years.
Conclusion
I would grant permission to appeal, allow the appeal, set aside the sentence imposed and, in its place, impose a single sentence of 11 years and nine months imprisonment, with a non-parole period of seven years, to be taken to have commenced on 3 July 2017.
BAMPTON J: I agree with the reasons of Vanstone J and the orders proposed.