R v H, ML - [2006] SASC 357

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v H, ML
[2006] SASC 357
Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Anderson and The Honourable Justice White)
28 November 2006
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 - WHEN GRANTED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Appeal against sentence – appellant convicted of two counts of unlawful sexual intercourse with a person under the age of 12 years – whether sentencing court was entitled to take into account uncharged acts which occurred outside Court’s jurisdiction - sentencing judge had regard to uncharged acts for an impermissible purpose – appeal allowed.
Criminal Law Consolidation Act 1935 (SA) s 74(1), referred to.
R v Hunt (1977) 15 SASR 476; R v Simons [1953] 1 WLR 1014; R v Warn (1937) 26 Cr Ap R 115, applied.
Craig v State of South Australia (1995) 184 CLR 163; DJL v The Central Authority (2000) 201 CLR 226; R v Batchelor (1952) 36 Cr App R 64 ; R v D (1997) 69 SASR 413; R v De Simoni (1981) 147 CLR 383; R v J (1992) 59 SASR 145; R v Lewis (1993) 60 SASR 582; R v Liddy (No. 2) (2002) 84 SASR 231; R v Reiner (1974) 8 SASR 102; R v White (1981) 28 SASR 9, considered.

R v H, ML
[2006] SASC 357
Court of Criminal Appeal: Debelle, Anderson and White JJ

DEBELLE J: This is an appeal against sentence. The appellant was found guilty following a trial by jury of two counts of unlawful sexual intercourse with a person under the age of 12 years. One count alleged fellatio and the other anal intercourse. The victim was the appellant’s daughter. She was aged 9 years at the time of the offending. The sentence for these crimes is imprisonment for life.
The offending with which the appellant was charged occurred in October 1999 over two days in Adelaide. The appellant’s daughter had accompanied her father on a visit to Adelaide so that her father could receive medical treatment. The offending occurred in a hotel room in Adelaide.
The trial judge sentenced the appellant to imprisonment for 12 years with a non-parole period of 7 years. The sentence was backdated to 5 May 2006, the date on which the appellant had been remanded in custody.
The victim is the daughter of the appellant and his first wife. They had separated and the appellant had remarried. He resided with his second wife and a son of that marriage in Drik Drik, a small settlement in Victoria near the border with South Australia. The victim resided with her mother at Mount Gambier.
From about 1995 until 2000 the victim had visited her father from time to time in Drik Drik. Those visits occurred mostly at weekends but also on school holidays until the victim finally refused to go at the end of 2000. The visits to Drik Drik by the appellant’s daughter had been encouraged by the appellant so that the victim and the appellant’s son by his second marriage could get to know one another.
Evidence was led at the trial of uncharged conduct of a sexual nature committed by the appellant during a number of visits by the victim to Drik Drik. Some of the alleged offending was of a serious nature. The evidence was led for the purpose of setting the offending in Adelaide in context.
After referring to the facts of the offending which has already been mentioned, the sentencing judge then referred to the context in which that offending occurred in these terms:
The jury must have accepted that this behaviour occurred in the context of an ongoing course of conduct by you towards your daughter. No other conclusion is reasonably able to be drawn from the verdicts.
The conduct involved a gradual grooming of your daughter by you in matters sexual over those years. Initially there was filming of her whilst she performed cart wheels naked and it then progressed to digital penetration, cunnilingus, attempted and some slight anal penetration and penile/vaginal penetration. This conduct was both before and after the offences in Adelaide and only stopped when your daughter refused to visit you at Drik Drik.
Her visiting had been encouraged by you over the years in the context of having company for your son from your present marriage and so the children would get to know each other. It often occurred when your wife was absent at work in Mount Gambier.
Later, he dealt with a submission that he should not sentence for the uncharged acts. He said:
Your counsel has submitted that because the course of criminal behaviour occurred out of the jurisdiction and has not been the subject of criminal proceedings in Victoria, you remain at risk in that regard and the incidents of the course of conduct should not be used in placing this offending into context for sentencing purposes. To adopt such a course would be to impose sentence on an entirely different basis from that considered by the jury in reaching their verdicts. That would be an inappropriate course to adopt and I decline to do so. I shall fix sentence in the same context as the matter was left to the jury.
Mr Vadasz, who appeared for the appellant, pointed to the last three sentences in that last extract. He submitted that the judge had sentenced the appellant for the uncharged conduct. He added that his submission was reinforced by the length of the sentence which had been ordered.
After making the remarks just quoted, the sentencing judge continued:
Of significant importance is that this offending was a breach of trust of the greatest kind. You, as a parent charged with the care and protection of your daughter when she was with you, have breached that charge in the most serious manner. Not only have you offended against her, but you have done so having groomed her over many years before the charged offending and you then continued after that offending, notwithstanding that in relation to each offence, on consecutive days, your daughter, by her reaction, made her abhorrence of such activity quite plain to you. You continued with the course of conduct for about another year, committing uncharged acts of a serious sexual type as I have mentioned.
The victim impact statements give a more graphic explanation of the hurt, anger and emotional upset your behaviour has wrought. Your daughter has lost personal confidence and sadly this seems to be reflected in her approach to her education. Only time will tell what effects the offending has on her. Her mother is in anguish of her daughter’s present circumstances and her present husband seems simply unable to cope.
When the sentencing remarks are considered as a whole, it is apparent that the judge has not used the uncharged acts for the purpose only of putting the offending in context but has sentenced the appellant both for the offending in Adelaide for which he had been convicted and for the other uncharged acts. Although the judge twice referred to the context of the offending, he has used the offending which is constituted by the uncharged acts as circumstances which aggravated the offending in Adelaide.
A sentencing court is not entitled to take into account offences which it has no jurisdiction to try: R v Warn (1937) 26 Cr Ap R 115; R v Simons [1953] 1 WLR 1014; R v Hunt (1977) 15 SASR 476. In none of those cases did the error cause the Court of Criminal Appeal to reduce the sentence. However, as Bray CJ noted in Hunt at 478, it should not be inferred from that fact that the court will never interfere when a mistake has been made about the nature or number of the offences for which an accused is being sentenced or which are being taken into account.
A distinction must be drawn between taking offences into account for the purpose of sentencing the accused of the offences for which he has been convicted and other offences on the one hand, and, on the other hand, of the process involved in having regard to other offences for the purpose of determining whether the offences for which an accused is being convicted are isolated offences. In the former case, the accused is being sentenced for the offence for which he is being convicted and the other offending. In the latter case, the accused is being sentenced only for the offences for which he is being convicted and consideration is given to the uncharged conduct for the purpose of determining the context in which the offending has occurred. In the latter case the court is entitled to take into the context and the surrounding circumstances of the crime for the purpose if only of determining such issues as whether the crime is an isolated offence: R v Liddy (No. 2) (2002) 84 SASR 231 at [69]. In this case the judge has sentenced on that offence in Adelaide and no other offending.
While the judge was entitled to take into account all the conduct of the accused in the context in which the offending occurred, he could not rely on the uncharged acts as an aggravating feature of the offending. That principle has an obvious parallel to the principle that a judge, in imposing sentence, is entitled to consider all the conduct of the accused including that which would aggravate the offence but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence: R v De Simoni (1981) 147 CLR 383 per Gibbs CJ at 389 with whom Mason and Murphy JJ agreed.
The judge has, therefore, erred in the exercise of his sentencing discretion because he has had regard to the uncharged acts for an impermissible purpose. It is necessary for this Court to sentence the appellant afresh.
The appellant is aged 53 years. He has no prior convictions. On completing his schooling, he has always been engaged in full-time employment. Before the verdict in this matter, he had been well regarded in the community. Imprisonment will cause severe financial hardship to his family as the appellant is the breadwinner for the family. As the sentencing judge found, the appellant is unlikely to re-offend.
The conduct in which the appellant engaged was abhorrent. It was a gross and deliberate breach of his position of trust towards his daughter. As this Court said in R v Lewis (1993) 60 SASR 582 at 584, the community at large, as well as this Court, can only view with abhorrence this kind of conduct which involves deliberate and persistent abuse of the position of trust. 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. In Lewis the offending involved six crimes of unlawful sexual intercourse. The court would have ordered a sentence of 12 years but for the plea of guilty, the co-operation of the respondent with the prosecuting authorities and his contrition.
In R v D (1997) 69 SASR 413 this Court has stated that a starting point for multiple offences of unlawful sexual intercourse with a child under 12 years over a period of time is 12 years imprisonment before any reduction for mitigating factors. In my view, that is a generous starting point given the offending of that kind involves a gross breach of trust by a person usually in some degree of authority which carries with it the real likelihood of causing serious harm to the victim for a long time, even for life. But this is not the occasion to review the guidelines fixed in R v D.
The nature of the offending, the fact that it involved a gross abuse of trust calls for a severe penalty. An additional factor is that this was not isolated offending of its kind. It is appropriate to impose one sentence for both offences. I would sentence the appellant to imprisonment for nine years. I would fix a non-parole period of six years.
ANDERSON J In this matter I have had the advantage of reading the judgments in draft of Debelle and White JJ.
I agree with White J that it is not clear whether the Judge has sentenced for the two offences committed in South Australia together with the course of conduct in Victoria, which was the subject of the uncharged acts.
Like White J, I do not think it is necessary to determine whether the Judge has made an error in relation to this aspect of sentencing. The reason why I do not think it is necessary is that I have come to the conclusion that the sentence is excessive in any event.
As has been pointed out by the two other members of the court, the comments regarding the starting point of 12 years made by Doyle CJ in R v D (1997) 69 SASR 413 at 424 were in the context of the offence of persistent sexual abuse of a child contrary to s 74(1) of the Criminal Law Consolidation Act 1935 (SA).
Regardless of whether the Judge erred in principle, and if he sentenced only for the two offences in South Australia and took the view that he should not extend leniency because those offences were not isolated acts, then the sentence is, in my view, still excessive.
I agree with Debelle J that the appellant should be re-sentenced, and that the appropriate sentence is for nine years with a non-parole period of six years. I would therefore allow the appeal.
WHITE J: The factual circumstances relating to this appeal are set out in the reasons of Debelle J.
Mr Vadasz, who appeared for the appellant, argued three points in support of the claim that the sentence imposed was excessive. They were, first, that the sentencing judge was not entitled to have any regard at all to the uncharged conduct alleged to have been committed in Victoria. In the alternative, if it had been appropriate for the judge to have regard to that conduct, he had done so in an impermissible way, either by punishing the appellant for that conduct, or by treating it as aggravating the offences committed in South Australia. Thirdly, Mr Vadasz submitted that a head sentence of 12 years with a non-parole period of seven years was in any event an excessive sentence for the two offences committed in South Australia.
In this case, none of the uncharged conduct upon which the prosecution relied had been committed in South Australia. All of the conduct alleged against the appellant, other than the two offences for which he was tried in the District Court, occurred in Victoria.
In relation to the uncharged acts, the judge said:
The jury must have accepted that this behaviour occurred in the context of an ongoing course of conduct by you towards your daughter. No other conclusion is reasonably able to be drawn from the verdicts.
The conduct involved a gradual grooming of your daughter by you in matters sexual over those years. … This conduct was both before and after the offences in Adelaide and only stopped when your daughter refused to visit you at [your home in Victoria].
Later, the judge said:
Your counsel has submitted that because the course of criminal behaviour occurred out of the jurisdiction and has not been the subject of criminal proceedings in Victoria, you remain at risk in that regard and the incidents of the course of conduct should not be used in placing this offending into context for sentencing purposes. To adopt such a course would be to impose sentence on an entirely different basis from that considered by the jury in reaching their verdicts. That would be an inappropriate course to adopt and I decline to do so. I shall fix sentence in the same context as the matter was left to the jury. … Not only have you offended against [your daughter], but you have done so having groomed her over many years before the charged offending and you then continued after that offending, notwithstanding that in relation to each offence, on consecutive days, your daughter, by her reaction, made her abhorrence of such activity quite plain to you. You continued with the course of conduct for about another year, committing uncharged acts of a serious sexual type as I have mentioned.
Mr Vadasz submitted that an earlier reference by the judge to “this conduct over such a time” and his reference in the passage quoted to the appellant having “continued with the course of conduct for about another year” indicated that he had sentenced the appellant for the whole course of conduct rather than just the two offences of unlawful sexual intercourse committed in South Australia. Mr Vadasz also referred to the judge’s statement that he would fix sentence “in the same context as the matter was left to the jury”.
The Jurisdiction of the District Court
The starting point of the appellant’s contentions on appeal was the submission that all crime is local and that the District Court had no jurisdiction to try an offence committed outside the territorial boundaries of South Australia.
It has been said that all crime is local[1] and that the jurisdiction to try and punish a crime is to be determined by the place where the crime is committed.[2] However, it is clear enough that the jurisdiction of a state court to try a crime alleged to have been committed outside the territorial boundaries of the state depends upon whether the accused is charged with a contravention of the criminal law of the state[3] and the application of the law to the conduct in question.[4] Providing that there is a relevant nexus with the state, state laws are capable of having application to persons, things and events occurring outside the state.[5] Even a remote and general connection between the subject matter of the legislation and the state may be sufficient in some cases.[6]
[1]    MacLeod v Attorney-General for New South Wales [1891] AC 455 at 458 per Lord Halsbury LC; Thompson v The Queen (1989) 169 CLR 1 at 33 per Deane J.
[2]    MacLeod v Attorney-General for New South Wales [1891] AC 455 at 458 per Lord Halsbury LC; Treacey v The Director of Public Proecutions [1971] AC 537 at 551 per Lord Reid.
[3]    Thompson v The Queen (1989) 169 CLR 1 at 22 per Brennan J.
[4]    Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485.
[5]    Port MacDonnell Professional Fishermen’s Association Inc v State of South Australia (1989) 168 CLR 340 at 372 per curiam; Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 529 per Mason CJ; Lipohar v The Queen [1999] HCA 65 at [59]; (1999) 200 CLR 485 at 510 per Gaudron, Gummow and Hayne JJ.
[6]    Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 14 per curiam.
In this case, the appellant was not charged with an offence in respect of the conduct alleged to have occurred in Victoria, and accordingly, it was not open to the District Court to try him, nor to sentence him, for that conduct.[7]
[7] Thompson v The Queen (1989) 169 CLR 1 at 22 per Brennan J.
However, Mr Vadasz went further and submitted that in the sentencing, no account at all could be taken in any way of the uncharged acts said to have been committed in Victoria. The appellant should have been sentenced, so it was submitted, on the basis that the two offences of which he had been found guilty were the only offences which he had committed, and without regard to the prosecution allegation that these offences had been committed as part of a course of conduct involving his daughter. Mr Vadasz accepted that the position may have been different if the appellant had admitted engaging in the uncharged conduct, but he had not. There had been no trial in Victoria which established his guilt in relation to the uncharged conduct and the District Court lacked jurisdiction, so it was submitted, to make any finding about whether that conduct had occurred.
Mr Vadasz referred to R v Warn[8] and to R v Simons[9] in which it was held that a court which has no jurisdiction to try a particular offence should not take that offence into account when passing sentence for an offence committed within its jurisdiction.[10] These principles were applied by the Full Court in R v Hunt[11] and in R v White.[12]
[8] (1937) 26 Cr App R 115.
[9] (1953) 1 WLR 1014.
[10] Ibid at 1016.
[11] (1977) 15 SASR 476.
[12] (1981) 28 SASR 9.

It is important to be clear about the sense in which these authorities speak of it being impermissible for a court to take account of an offence which it has no jurisdiction to try. The practice of courts taking into account other offences at the time of sentencing is of long standing. It was described by the Court of Criminal Appeal in R v Batchelor[13] in the following terms:
It is simply a convention under which, if a court is informed that there are outstanding charges against a prisoner who is before it for a particular offence, the court can, if the prisoner admits the offences and asks that they should be taken into account, take them into account, which means that the court can give a longer sentence than it would if it were dealing with him only on the charge mentioned in the indictment.[14]
This passage was cited with approval in R v J[15] in which the Full Court discussed the practice of a sentencing court taking account of other offences.
[13] (1952) 36 Cr App R 64.
[14] Ibid at 67-8.
[15] (1992) 59 SASR 145 at 150.
Legislative sanction for the practice of taking into account other offences is provided by s 10(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA).
The practice involves the court dealing with the offences of which account is taken by treating them as though they had actually been charged. It may lead to the imposition of a higher sentence, although not a sentence which exceeds the maximum penalty for the offence with which the offender has actually been charged.[16] The taking into account of offences cannot found a plea of autrefois acquit but it has been said that it would be an abuse of process for an offender to be charged subsequently with offences of which account was taken in a previous sentencing.[17]
[16] Ibid at 151; R v White (1981) 28 SASR 9 at 11.
[17] R v White (1981) 28 SASR 9 at 13.
It is in relation to this practice that Warn, Simons and Hunt speak of it being impermissible for a sentencing court to take into account offences which it has no jurisdiction itself to try.[18]
[18] See also R v J (1992) 59 SASR 145 at 151.
However, it does not follow that because the District Court could not take account, in the sense described above, of the uncharged conduct alleged to have occurred in Victoria, that it was not entitled to have any regard at all to that conduct.
If the uncharged conduct had occurred in South Australia, the approach which would be applied, in the absence of a request by the appellant that it be taken into account, is clear. The uncharged conduct could not be used to increase the potential maximum punishment, nor could it be regarded as aggravating the offences for which the appellant was to be sentenced. The uncharged conduct could, however, be used to refuse leniency which might otherwise have been able to have been extended if the offences for which the appellant was found guilty were isolated offences.[19]
[19] R v D (1997) 69 SASR 413 at 419 per Doyle CJ; R v Reiner (1974) 8 SASR 102 at 105 per Bray CJ.
There is no reason in principle why reference cannot be made to conduct which is alleged to have occurred outside South Australia which shows the circumstances and context in which offending within South Australia occurred when a court is considering sentence. Those circumstances do not cease to be relevant simply because they occurred across a state border. A sentencing court does not have to be, and should not be, oblivious to relevant circumstances which have occurred elsewhere. Further, in my opinion, a sentencing court is entitled to hear evidence and to determine for itself whether the conduct alleged to have been committed outside South Australia was in fact committed. When it does so, the court does not exceed its jurisdiction. It is simply determining an issue which arises incidentally in the exercise of the jurisdiction undoubtedly vested in it. A court of limited jurisdiction has authority to decide issues which arise incidentally in the determination of a matter within its jurisdiction, even although the issue, had it arisen discretely, would not otherwise have been within jurisdiction. In Craig v State of South Australia[20] it was said by the High Court that:
[T]he ordinary jurisdiction of a court of law encompasses authority to decided questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine.[21]
In DJL v The Central Authority[22] it was said:
A court exercising jurisdiction or powers conferred by statute “has powers expressly or by implication conferred by the legislation which governs it” and “[t]his is a matter of statutory construction”; it also has “in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred”. It would be inaccurate to use the term “inherent jurisdiction” here and the term should be avoided as an identification of the incidental and necessary power of a statutory court.[23] [Citations omitted.]
[20] (1995) 184 CLR 163.
[21] Ibid at 179.
[22] [2000] HCA 17; (2000) 201 CLR 226.
[23] Ibid at 241 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
In summary, I agree that it was not open to the District Court to take account, in the way discussed in R v J[24] and the earlier authorities, of the uncharged conduct alleged to have occurred in Victoria. However, the District Court was entitled to consider the offences committed in South Australia in the context of the appellant’s conduct outside South Australia, and for that purpose, the District Court had authority to decide any disputed facts which arose on that issue. The appellant could not of course be punished in South Australia for his conduct which occurred in Victoria but that did not mean that regard could not be had to the Victorian conduct in determining an appropriate sentence for the South Australian offences.
[24] (1992) 59 SASR 145.
The Sentence of the Judge
I have set out above the relevant portions of the judge’s sentencing remarks.
The judge was satisfied that the prosecution had proved, beyond reasonable doubt, the commission in Victoria of the uncharged acts. As already noted, the judge said:
The jury must have accepted that this behaviour occurred in the context of an ongoing course of conduct by you towards your daughter. No other conclusion is reasonably able to be drawn from the verdicts.
Apart from the submission concerning jurisdiction, it was not suggested that this conclusion was not open to the judge.
The judge’s sentencing remarks leave it unclear, in my opinion, whether the judge has sentenced for the whole of the conduct comprised in the appellant’s course of conduct, or only for the two offences committed in South Australia without any leniency being extended on account of the fact that they were not isolated acts. The judge’s reference to the conduct having occurred “over such a time” and to the appellant having “continued with the conduct for about another year” suggest the former, while his statement that he would sentence the appellant “in the same context as the matter was left to the jury” may suggest the latter.
In the end, I have not thought it necessary to reach a conclusion about this as I am satisfied that the sentence imposed was too high. The judge’s sentence of 12 years is at the starting point suggested by Doyle CJ in R v D[25] for multiple offences involving unlawful sexual intercourse committed over a period of time with children under the age of 12 years. In this case, the appellant was to be sentenced for two offences committed on successive days. The offences were insidious, involving a serious breach of trust, and resulting in dreadful effects for the appellant’s daughter. But even allowing for the fact that the conduct in Victoria meant that leniency could not be extended, the imposition of a sentence of the same length which is said to be appropriate for multiple offending over a long period of time indicates, in my opinion, error by the judge. Application of the standard suggested in R v D in the circumstances of this case would involve punishing the appellant for the offences which the judge was satisfied had been committed in Victoria.
[25] (1997) 69 SASR 413 at 424.
The appellant should be re-sentenced. His personal circumstances are set out in the reasons of Debelle J. It is not necessary to repeat them. I agree with Debelle J that a single sentence of nine years with a non-parole period of six years is appropriate in this case.
I would allow the appeal so as to make orders to that effect.