R v H, GJ (No 2)

Case [2014] SASCFC 102

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v H, G J

[2014] SASCFC 102

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Stanley)

24 September 2014

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - INDECENT ASSAULT AND RELATED OFFENCES

Appeal against sentence for sexual offending.

The appellant committed sexual offences against SC (when aged between 10 and 12), DC (when aged between 13 and 18) and JC (when aged 10 and 13).  DC was the daughter of Ms X with whom H lived in the 1980s.  SC and JC were two other young female children who often stayed with H and Ms X.  DC fell pregnant to H when she was 15 and gave birth to B1, their first child, in 1987.  In that year H was charged with offences against SC and JC but denied the allegations and in 1989, after various evidence was ruled inadmissible and the counts were severed, a nolle prosequi was entered.  H maintained his relationship with DC, and after DC turned 18 the couple had a second child, B2, in 1997.  In 2009 DC and H separated and in 2011 SC, JC and DC complained to police.  H was prosecuted and made applications for the proceedings to be stayed, for various evidence to be excluded, and for separate trials.  After all such applications were dismissed, H pleaded guilty to the offending and was sentenced to a head sentence of 11 years eight months with a non-parole period of six and a half years. 

H appealed against sentence.

Held per Peek J (Blue J and Stanley J agreeing):

1.       The appeal should be dismissed. 

2. The Judge gave sufficient weight to the delay in all of the circumstances. R v Todd (1982) 2 NSWLR 517; R v Pickard [2011] SASCFC 134; The Queen v R, AW (2012) 113 SASR 179 distinguished.

3.       The Judge gave sufficient weight to the fact that after DC turned 18, H and DC lived together for 20 years as husband and wife with their children. 

4.       The Judge allowed a measure of concurrency in sentencing.  He was not required to make the sentences concurrent as between each of the complainants. 

5.       Although the sentence imposed by his Honour was severe, neither the head sentence nor the non-parole period were manifestly excessive.  The decision not to suspend the sentence was within the sentencing Judge’s discretion. 

Criminal Law Consolidation Act 1935 ss 50(1), 50(8)(a); Criminal Law (Sentencing) Act 1988 s 18A,…

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AGLC
R v H, GJ (No 2) [2014] SASCFC 102
Case
[2014] SASCFC 102
Decision Date

CaseChat Overview and Summary

The appellant, H, appealed against sentences imposed by a sentencing judge for offences including indecent assault and persistent sexual exploitation. The charges related to three complainants: SC, JC, and DC. The offending against SC and JC occurred between 1981 and 1984, while the persistent sexual exploitation of DC occurred between 1984 and 1989. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Peek, Blue, and Stanley JJ.

The primary legal issues before the Full Court concerned whether the sentencing judge had given sufficient weight to various factors raised by the appellant in his grounds of appeal. These included the significant delay between the offending and the sentencing, the appellant's rehabilitation and changed circumstances during that period, and the fact that the appellant and DC lived together as husband and wife for 20 years after the offending ceased. The appellant also argued that the sentencing judge erred in imposing individual sentences for each complainant and ordering them to be served cumulatively, and that the head sentence and non-parole period were manifestly excessive, with a failure to suspend the sentence.

The Full Court, in dismissing the appeal, held that the sentencing judge had given sufficient weight to the delay in all the circumstances, distinguishing relevant authorities. The court also found that the judge had adequately considered the appellant's cohabitation with DC for 20 years after the offending ceased and had correctly allowed a measure of concurrency in sentencing, though not required to make sentences concurrent between complainants. The court concluded that while the sentence was severe, neither the head sentence nor the non-parole period were manifestly excessive, and the decision not to suspend the sentence was within the sentencing judge's discretion.

Orders

Orders of the court

Held per Peek J (Blue J and Stanley J agreeing):

1. The appeal should be dismissed.

2. The Judge gave sufficient weight to the delay in all of the circumstances. R v Todd (1982) 2 NSWLR 517; R v Pickard [2011] SASCFC 134; The Queen v R, AW (2012) 113 SASR 179 distinguished.

3. The Judge gave sufficient weight to the fact that after DC turned 18, H and DC lived together for 20 years as husband and wife with their children.

4. The Judge allowed a measure of concurrency in sentencing. He was not required to make the sentences concurrent as between each of the complainants.

5. Although the sentence imposed by his Honour was severe, neither the head sentence nor the non-parole period were manifestly excessive. The decision not to suspend the sentence was within the sentencing Judge’s discretion.

Background

Background to the litigation

The appellant appeals against sentence on the following grounds:1.In sentencing the appellant to a sentence of 3 years imprisonment, before reduction, for the two counts of indecent assault relating to SC; and to a sentence of 3 years imprisonment, before reduction, for the two counts of indecent assault relating to JC; the Learned Sentencing Judge erred:-1.1 In failing to give sufficient weight to the fact that the Court dealt with the offending in relation to SC and JC in April 1989 when they were brought before the Court for trial and a nolle prosequi was entered by the DPP.1.2 In failing to give sufficient weight to the period between April 1989 and when the offending was again brought before the Court.1.3 In failing to give sufficient weight to the rehabilitation of the appellant and his change of circumstances which had occurred during that period.2.In sentencing the appellant to a sentence of 8 years imprisonment, before reduction, for the offence of persistent sexual exploitation of DC, the Learned Sentencing Judge erred in failing to give any, or any sufficient, weight to the fact that the appellant and DC lived together as husband and wife for a period of 20 years after the offending ceased.3.In sentencing the appellant, the Learned Sentencing Judge erred in finding that the appellant “tried everything to avoid responsibility for your sexual abuse of the girls.” insofar as DC is concerned.4.In the unusual circumstances of the Appellant’s offending, the Learned Sentencing Judge erred in imposing individual sentences with respect to the offending against each complainant, and further erred in ordering that each sentence should be served cumulatively.5.In all the circumstances, both the head sentence and the non-parole period imposed on the appellant by the Learned sentencing Judge are manifestly excessive.6.The learned Sentencing Judge erred in determining that there was no good reason to suspend the sentence imposed upon the appellant, and erred in not suspending the Appellant’s sentence.A brief summary of the facts The charges against SC and JC are specific charges of indecent assault and this was the conduct for which the appellant was to be punished; however, the appellant agreed that these charges were to be approached on the basis that it was not submitted as a mitigating factor that they happened “out of the blue” or that they were isolated incidents. Count 1, the charge concerning DC, encompasses a large number of incidents occurring from when DC was 13 until she turned 18 (the sexual behaviour continuing thereafter but no longer unlawful).[2][2] The age was 18 rather than 17 for the reasons explained in footnote 1 above. The timing of the conduct in relation to the various victims largely overlapped but the rough chronological order of the charges and other relevant events was as follows. ·Between 17 December 1980 and 16 December 1982, the appellant indecently assaulted SC when she was 10 or 11 years old. [Count 2]·Between 31 October 1981 and 30 October 1982, the appellant indecently assaulted JC when she was 10 years old. [Count 4]·Between 1 September 1983 and 10 September 1983, the appellant indecently assaulted SC when she was 12 years old. [Count 3]·Between 1 March 1984 and 1 March 1989, the appellant persistently sexually exploited DC when she was between the ages of 13 to 18 years old. [Count 1]·Between 1 May 1984 and 31 May 1984, the appellant indecently assaulted JC when she was 13 years old. [Count 5]·In 1986, within the period charged in count 1, and when DC was 15 years old, she fell pregnant. On 27 April 1987, [B1], the first child of the appellant and DC, was born. After [B1]’s birth, the relationship between the appellant and DC was to continue for more than 20 years until 2008 or 2009 when DC formed a new relationship and moved to Scotland.·In 1987, the appellant was charged with offending in relation to SC and JC (but not DC). The appellant denied the charges in his police interview and was to contest them at a trial in the District Court. During pre-trial proceedings, the Judge severed the counts in respect of the two complainants (as was then required by the decision of the High Court in Hoch v The Queen[3]) and ruled that certain evidence was inadmissible. On 17 April 1989, a nolle prosequi was entered in relation to the charges.·The appellant continued to maintain a sexual relationship with DC and on 18 January 1997, [B2], the second child of the appellant and DC (who was then 25 years of age), was born.·In 2008 or 2009, the relationship between the appellant and DC ended. ·In June to July 2011 statements were given to police by DC, SC and JC and the appellant was arrested in August 2011. ·The appellant subsequently made a number of applications seeking to: have the proceedings in relation to SC and JC stayed; to have the evidence of SC and JC excluded; and for separate trials in relation to each complainant. All such applications were unsuccessful. On 11 March 2014 the appellant pleaded guilty to the charges set out above.[3] (1988) 165 CLR 292.Ground 1 of appeal: Sentencing on counts 2-5 after a long delay

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J BLUE J (dissent) STANLEY J (dissent)
The matter of suspension of sentence is very much a matter of discretion. The appellant did not suggest that the Judge failed to take into account a relevant factor or took into account an irrelevant factor. On the contrary, his Honour took a good deal of care with his sentencing process. In all of the circumstances of the case, a decision not to suspend was well within the Judge’s discretion. This ground of appeal must be rejected.Conclusion No ground of appeal is made out. The appeal must be dismissed. I agree. I would dismiss the appeal. I agree with the reasons of Peek J.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J,

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