R v H, GJ (No 2)

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, referred to.
R v Todd (1982) 2 NSWLR 517; R v Pickard [2011] SASCFC 134; The Queen v R, AW (2012) 113 SASR 179, distinguished.
R v Bagnato (2011) 112 SASR 39; R v Belzacki (2011) 112 SASR 95; Hoch v The Queen (1988) 165 CLR 292, discussed.
R v Blain (1984) 115 LSJS 270, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"nolle prosequi", "unlawful sexual intercourse", "subsequent relationship", "marriage", "husband and wife"

R v H, G J
[2014] SASCFC 102
Court of Criminal Appeal: Peek, Blue and Stanley JJ

PEEK J. Appeal against sentence for sexual offending.
The appellant, H, was born on 7 August 1952 and is now 62 years old. He has no relevant prior criminal record.
In about 1979 or 1980, the appellant commenced to live with Ms X who was the mother of DC (born 1 March 1971). Two other young female children often stayed with H and Ms X. They were SC (born 17 December 1970) and JC (born 31 October 1971).[1] Over time, the appellant came to sexually abuse all three of those children.
[1] He thereby became a “foster parent, step-parent or guardian” of the children pursuant to s 50(8)(a), Criminal Consolidation Act 1935. Consequently, the prescribed age of the children for the purposes of s 50(1) was 18 years rather than 17 years.
On 11 March 2014 the appellant pleaded guilty to each of the following charges on Information:
First Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[H] between the 1^st day of March 1984 and the 1^st day of March 1989 at Largs Bay, Taperoo and Kersbrook committed more than one act of sexual exploitation of [DC], a person under the age of 18 years, over a period of not less than three days.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation were:
(a)     touching [DC] on the breasts on more than one occasion;
(b)     touching [DC’s] vagina on more than one occasion;
(c)     penetrating [DC’s] vagina with his fingers on more than one occasion;
(d)     causing [DC] to perform fellatio upon him on more than one occasion;
(e)     performing an act of cunnilingus on [DC] on more than one occasion;
(f)    inserting his penis into [DC’s] vagina on more than one occasion.
Second Count
Statement of Offence
Indecent Assault. (Section 56(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[H] between the 17^th day of December 1980 and the 16^th day of December 1982 at Largs Bay or Taperoo, indecently assaulted [SC], a person of the age of 10 or 11 years.
Third Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
[H] between the 1^st day of September 1983 and the 10^th day of September 1983 at Taperoo, indecently assaulted [SC], a person of the age of 12 years.
Fourth Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
[H] between the 31^st day of October 1981 and the 30^th day of October 1982 at Taperoo, indecently assaulted [JC], a person of the age of 10 years old.
Fifth Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
[H] between the 1^st day of May 1984 and the 31^st day of May 1984 at Taperoo indecently assaulted [JC], a person of the age of 13 years.
The sentence and the grounds of appeal
On 30 May 2014, a Judge in the District Court sentenced the appellant to head sentences totalling 11 years eight months imprisonment with a non-parole period of six and a half years. The Judge arrived at the sentences as follows:
1On count 1 the Judge adopted a starting point of eight years imprisonment which the Judge discounted to six years eight months on account of the appellant’s late guilty plea;
2On each of counts 2 and 3, the Judge utilised s 18A, Criminal Law (Sentencing) Act and imposed a single sentence of two and a half years discounted from three years on account of the appellant’s late guilty plea;
3On each of counts 4 and 5, the Judge utilised s 18A, Criminal Law (Sentencing) Act and imposed a single sentence of two and a half years discounted from three years on account of the appellant’s late guilty plea;
4The Judge made the sentences imposed in respect of DC (count 1), SC (counts 2 and 3) and JC (counts 4 and 5) cumulative.
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
The appellant’s case is that he has not offended against the criminal law since 1 March 1988 (the date when DC turned 18 and sexual intercourse with her ceased to be unlawful) and that long delay has occurred, both since the offending on counts 2 to 5 (last date 31 May 1984) and since the entry of the nolle prosequi on 17 April 1989.
The appellant relies on the decision of the New South Wales Court of Criminal Appeal in R v Todd.[4] In that case a number of offences were committed within a short period of time in two adjoining States; the problem was that each jurisdiction sentenced without reference to the other (thus negating partial concurrency of sentence) and substantial delay was generated by the involvement of two jurisdictions rather than one. The decision establishes a principle that extends beyond that particular factual situation, but at base the Court in Todd was primarily concerned with three things. First, the ability to allow a measure of concurrency, should that be called for by the circumstances under which multiple offences were committed. Second, mitigation by reason of delay that was not the fault of the accused. Third, (and associated with the second), mitigation by reason of an accused having already undergone a degree of rehabilitation during the period of delay preceding his ultimate sentencing.
[4] (1982) 2 NSWLR 517.
The appellant also relies on the decision of this Court in R v Pickard,[5] where Gray J and Blue J each considered in detail the development of the law in this area since Todd. Reference to the authorities there discussed suggests that hypothetically the most powerful mitigating combination would be one of substantial delay, due entirely to the fault of governmental agencies, together with major changes in the situation of the accused, together with strong evidence of complete rehabilitation having been achieved. Obviously, the permutations of fact and degree in cases coming before the courts will be highly variable.
[5] [2011] SASCFC 134.
In Pickard, the case for mitigation was strong on the basis that:
·it was remarkable and deplorable that such long delays occurred in the prosecution of the offences between January 2008 and July 2010;
·no explanation whatsoever was proffered for the delays, which were clearly the fault of the investigating and prosecution authorities”;[6]
·there were findings of “very substantially changed life circumstances of the defendant occurring during that delay”[7] ─ “she had moved to Perth, taken employment and was pregnant”;[8] and,
·she “had completely rehabilitated herself from her earlier alcohol and drug abuse. Her earlier dysfunctional existence, the result of a poor family background, had been replaced by a responsible lifestyle of a young married mother”.[9]
[6] Blue J at [94].
[7] Blue J at [116].
[8] Gray J at [26].
[9] Gray J at [27].
The appellant also relies on the decision in The Queen v R, AW.[10]However, the facts there were quite exceptional and may be summarised as follows:[11]
The charged conduct ceased in 1996. About seven years later in May 2003, when she was aged 14 years nine months, M complained of that conduct to her school chaplain who referred the matter to the Department of Families and Youth Services (FAYS) and SA Police (SAPOL) (together referred to as the Governmental Agencies). Discussions occurred in May 2003 between the Governmental Agencies, M, A, and the respondent. Such discussion also included discussion with officials of the Sexual Offender Treatment and Assessment Programme (SOTAP). It was resolved between all parties that instead of criminal charges being laid, the respondent would attend at SOTAP to obtain treatment and while doing so would move out of the matrimonial home. … The agreed course of action involved the respondent moving out of his home and living in a caravan for some 14 months while successfully completing stages one and two of the SOTAP course. Having done so, the respondent moved back into the matrimonial home with the consent of A in about September 2004. … In May 2010, after about 28 years of marriage, the respondent and A separated in acrimonious circumstances. … The request by M to the police to re-open her complaint against the respondent occurred shortly after the separation and appears to have came about largely as a result of A then actively encouraging her daughter to have the matter re-opened.
[10] (2012) 113 SASR 179.
[11] (2012) 113 SASR 179, 186-187.
The difficulty for the present appellant is that his situation is quite different to the situations considered in the above line of cases.
If one takes the last date of offending against SC as 10 September 1983 [count 3], the delay in relation to the SC charges may be said to commence at that date; but rehabilitation certainly does not, since it is known that the appellant indecently assaulted JC between 1 May and 31 May 1984 [count 5].
Again, if the delay in relation to the JC charges commences as from 31 May 1984, again rehabilitation certainly does not, since it is known that the appellant is guilty of persistent sexual exploitation of a child (DC) continuously between 1 March 1984 and 1 March 1989 (when DC turned 18) [count 1].
And if delay in relation to the DC charges is said to commence as from 1 March 1989, it is known that the appellant was then being prosecuted in relation to offending against SC and JC. The appellant falsely denied his guilt to police; gave false instructions of innocence to his solicitors; and wasted a great deal of the time of the Office of the Director of Public Prosecutions and of the courts by seeking to defeat charges that he knew to be correct. He was successful in his enterprise in that a nolle prosequi was entered on 17 April 1989.
As for delay said to have occurred from the entry of the nolle prosequi on 17 April 1989 to his second prosecution in 2013, this must be viewed very much in the light of his conduct leading up to the entry of the nolle prosequi. In The Queen v R, AW, I said:[12]
[87]It is sometimes said that where a man is prosecuted for sexual crimes committed when much younger, but not detected until long after the event, it is not unfair to subject him to prison as an older man because he was able to spend the best years of his life out of prison until he was eventually called upon to pay the price. It is further said in such cases that weight must be given to general deterrence so as to demonstrate that such crimes will eventually be found out and will be visited with substantial punishment.
[88]I bear such considerations in mind and I emphasise that, as a matter of general principle, the basic concepts of justice which underlie the criminal law require that punishment be fairly proportionate to the crime. When fixing a non-parole period, attention must be directed to the minimum period that the defendant must, if the purposes of punishment are to be served, remain in prison.
[12] (2012) 113 SASR 179, 203.

On the very unusual facts in R, AW, I considered that these general principles had to be given only limited application but the present case is very different to that in R, AW. The following remarks of the present sentencing Judge are quite apposite here:
You told Dr Raeside, who has provided me with a report concerning your psychological issues and your personal background, that when you were originally charged with sexually abusing SC and [JC], back in 1987, you pleaded not guilty but that and I quote, ‘on reflection, I should have pleaded guilty but I had a different attitude back then than I do now’.
I do not accept that. In 2012 when you were re-charged with committing the offences against SC and [JC], in addition to the fresh charge involving DC, you took every legal point available to you in order to avoid responsibility for your shocking behaviour.
As his Honour points out, the appellant had the chance of cleaning the slate in relation to SC and JC in 1987 but chose not to do so. Again in 2011, the appellant had the chance of cleaning the slate in relation to SC and JC. However, although he did eventually plead guilty in 2014 and stopped short of giving false evidence on oath, his pleas were belated and entered only after his best efforts to defeat the charges proved unsuccessful.
I reject ground 1 of appeal.
Ground 2 of appeal: The 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 DC turned 18 years old
Having said all of the above, it may be said in favour of the appellant that as time went forwards, through the 20 years of a stable relationship with DC and their two sons, that stability together with the absence of further criminality is indicative of some rehabilitation. With that in mind, I turn to ground 2 of appeal.
The appellant here complains that the Judge failed 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 sexual activity with DC ceased to be unlawful (upon her turning 18 years old).
Before the Judge, counsel put the matter attractively: one can easily imagine a situation where an 18 year old male and a 16 year old female commence an unlawful sexual relationship, later marry, have children and live a long and happy married life. Counsel then argues that the situation with DC was little different except that the (defacto) marriage foundered after 20 years as so many other marriages founder, for one reason or another.
In lengthy discussion with counsel during the sentencing submissions, the Judge explored that topic, and related matters, in depth, and his Honour’s conclusions were crystallised later in his sentencing remarks.
On one level, the analogy as put by counsel had to be rejected. A reality check discloses that at the time of the commencement of the offending against DC in 1984, she was about 13 and he was over 30; and that the offending against DC had been preceded by his serial offending against SC (commencing when she was only 10 or 11 years old) and against JC (commencing when she was only 10 years old) referred to in counts 1, 2, 3 and 4.
However, on a rather different level, there was material here that his Honour did take into account in substantially discounting DC’s claims that her whole life had been totally ruined. His Honour received evidence of a large number of photographs which depict the appellant and DC with their sons B1 and B2 throughout their more than 20 years of marriage: at home; on numerous holidays; and at various functions and occasions of significance to themselves and their children as take place in normal married life. His Honour also received impressive and thoughtful statements from the son B1 and the appellant’s daughters, K and S. In sentencing, the Judge said this:
Despite DC’s expressions to the court, I am satisfied that the two of you indeed, led a rather happy life together, as the many photographs tendered reveal. They show the family enjoying many happy times and holidays together. Indeed, your son, [B1], has set out his memories of growing up in the family environment. It is very sad to read the effect his mother’s disclosure of your abuse upon her has had upon him. He is torn between the two of you and very confused as to why his mother would want to see you imprisoned. Those feelings are only natural, of course, as he now suffers from the consequences of your sexual abuse of his mother and her two cousins.
Your daughters, K and S, have also provided letters to me describing the family situation insofar as they observed it to be. Each support that life at home between you and DC appeared happy and loving. You and DC were affectionate towards each other right up until DC left you to go to Scotland to be with her present husband in 2008 or 2009.
So it was that his Honour came to a view, relatively favourable to the appellant, as to the extent of permanent deleterious effects on DC. At the same time, his Honour came to an unfavourable view as to the nature of the original offending when DC was still a child. His Honour stated:
Having noted this, it does not diminish the seriousness of your sexual abuse of DC over so many years when she was a child.
The law demands that significant deterrent penalties be imposed for the prolonged sexual abuse of a child. Indeed, in the case of all of your offences, I must give proper effect to the need to protect children by ensuring paramount consideration is given to the need for general and personal deterrence. This is, as I have already told you, achieved through the imposition of an immediate prison sentence. I will return to the issue of your personal deterrence later.
These matters, together with many others, were all considered by the Judge in carrying out the process of synthesis leading to the final formulation of sentence. The appellant has not made out this ground of appeal.
Ground 3 of appeal: In sentencing the appellant, the Judge erred in finding that the appellant “tried everything to avoid responsibility for your sexual abuse of the girls” insofar as DC is concerned.
Although inelegantly drafted, ground 3 of appeal appears to mean that his Honour’s comments in emphasis are not complained of in relation to the SC and JC charges [counts 2 to 5] which were the subject of legal manoeuvres but are complained of in relation to the DC charges [count 1] which was not the subject of the legal manoeuvres. However, his Honour’s remarks here clearly address only the charges relating to SC and JC:
Let me now turn to the sexual abuse you perpetrated upon SC and [JC].
…
After the victim impact statements were presented to the court you stood up in the dock and apologised to [JC], SC and their families. You have claimed that you are now remorseful for your actions all those years ago. I am not satisfied that you have a true understanding of the deep harm you have caused each of the girls you sexually abused. If you had, then you would have acknowledged your guilt at a much earlier time.
You told Dr Raeside, who has provided me with a report concerning your psychological issues and your personal background, that when you were originally charged with sexually abusing SC and [JC], back in 1987, you pleaded not guilty but that and I quote, ‘on reflection, I should have pleaded guilty but I had a different attitude back then than I do now’.
I do not accept that. In 2012 when you were re-charged with committing the offences against SC and [JC], in addition to the fresh charge involving DC, you took every legal point available to you in order to avoid responsibility for your shocking behaviour.
First, you argued that the criminal proceedings should be permanently stayed. When a judge of this court refused to do so, you challenged his decision before the Full Court of the Supreme Court, which rejected your application to do so.
Next, you sought to have each of the charges involving DC, SC and [JC] severed from one another so as to enhance your prospects of an acquittal, arguing there was no cross-admissibility between the charges when I held that there was.
In doing so, you sought to introduce evidence from a psychologist to argue that the memories of SC and [JC] must have been irretrievably contaminated to the point, where it was submitted, that I should exclude their evidence in its totality simply because they read the statements they originally provided to the police in 1987 and 1988. I refused to exclude their evidence on that basis.
So you have tried everything to avoid responsibility for your sexual abuse of the girls. You only pleaded guilty when you realised your guilt would inevitably have been proved by the prosecution.
Nevertheless, I have given you a reduction in your sentence, although it was not anywhere near as great as I would have given you if you owned up to what you did straightaway.
At least by pleading guilty you not only spared the expense of a long and complicated criminal trial, but more importantly, each of your victims did not have to re-live, in the witness box, the disturbing ordeals they endured from you.
Having watched and listened to your victims read their impact statements to the court, I have little doubt their court experiences would have been traumatic for them, and for sparing them that further experience I have reduced your sentence.
But in any event, the Judge in no way suggested that the appellant was not entitled to engage in legal manoeuvres. His Honour simply observed that such an approach may affect the leniency to be given in relation to an eventual plea of guilty by reference to the extent of contrition that is to be inferred from his overall behaviour. And, as I say, his Honour clearly bore in mind the distinction between SC and JC on the one hand and DC on the other hand.
This ground of appeal is misconceived and it is rejected.
Ground 4 of appeal: Concurrency or partial concurrency of sentence
The power to allow whole or partial concurrency of sentence is always available and the real question is whether a measure of concurrency should be allowed in any given case.
In R v Bagnato[13] and R v Belzacki,[14] I referred to some of the considerations relevant to the cumulative/currency dichotomy and noted that while some situations will clearly call for concurrent sentences rather than cumulative sentences and vice versa, in many factual situations a sentencing Judge will have a broad degree of discretion as to which approach to adopt.
[13] (2011) 112 SASR 39.
[14] (2011) 112 SASR 95.
In the present case, the Judge made the sentences as to the two offences against JC concurrent as between themselves and made the sentences as to the two offences against SC concurrent as between themselves. However, he did not make the sentences for the offending as against the different victims JC, SC or DC concurrent and, in my view, he was not required by the circumstances of the case to do so. As a broad approach, it is fair to say that while concurrency might suggest itself in a situation where a person unlawfully assaults a number of different people over a short period of time due to a common operative cause (say each of them offers similar insults and jibes, and the person loses their temper), the same approach does not apply in the case of sexual assaults upon different victims. It is human to over-react or lose one’s temper, and mercy may be extended through the medium of concurrency in appropriate cases; the same reasoning simply does not engage in the case of sexual assault against different victims.
Of course, the term “concurrency” can be used in a somewhat different sense; concurrency of sentence may be used as a tool to moderate an overlong sentence resulting from multiple cumulative sentences. The use of the term “concurrency” in that sense was much more common prior to the advent of s 18A, Criminal Law (Sentencing) Act 1988 but it is still not infrequently encountered.[15]
[15] King CJ used the term in that sense in R v Blain (1984) 115 LSJS 270, 273 when his Honour stated: “[G]enerally speaking it is desirable that the sentencing judge should impose for each of the crimes charged in the counts in the information a punishment which reflects the degree of criminality involved in the facts of that particular crime and that a punishment commensurate with the total course of conduct involved should be achieved by accumulating the sentences on the charges in the information to a sufficient degree to reach a total punishment which is the proper punishment for the course of conduct disclosed both by the charges in the information and the matters asked to be taken into account. I do not say that is the only way in which it can be done, but it seems to me that it is the most appropriate way.”
A complaint that concurrency in that sense was not adopted really depends on an examination of the gravity of the overall offending, the totality of sentence and, in unusual cases, whether the sentence may truly be said to be crushing. Accordingly, I turn to ground 5 of appeal where a complaint as to the total sentence is made.
Ground 5 of appeal: In all the circumstances, both the head sentence and the non-parole period imposed on the appellant by the Judge are manifestly excessive.
This ground of appeal addresses the total head sentence (and non-parole period) rather than the individual sentences complained of in other grounds. In effect, it complains of the totality of sentence although it does not call in aid that terminology.
The sentence of 11 years eight months imprisonment with a non-parole period of six and a half years is severe; the appellant has just turned 62 years old and will be 68 years old when his non-parole period expires.[16]
[16] Commencing on 19 May 2014.
However, no sentencing error is here disclosed. The head sentence is not manifestly excessive and the non-parole period does not bear an unduly high proportion to the head sentence. Nor can I say that the sentence is “crushing” within the meaning of that term as it is used in the relevant authorities. This ground of appeal must be rejected.
Ground of appeal 6: The Judge erred in not suspending the sentence.
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.
BLUE J. I agree.
STANLEY J. I would dismiss the appeal. I agree with the reasons of Peek J.

[2014] SASCFC 102

24 September 2014

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Charge

Sentencing

Stay of Proceedings