R v H, St No. Sccrm-02-432

R v H, ST
[2003] SASC 119
Court of Criminal Appeal: Perry, Nyland and Bleby JJ

PERRY J: I agree with the order proposed by Nyland J and with her reasons.
NYLAND J This is an appeal against a sentence imposed in the District Court on 6 December 2002. The appellant pleaded guilty to three counts of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935. The maximum penalty for each of these offences is imprisonment for eight years. Another charge of unlawful sexual intercourse was withdrawn.
The learned sentencing judge applied the provisions of s 18A of the Criminal Law (Sentencing) Act 1988 and imposed one penalty for all of the offending. He sentenced the appellant to be imprisoned for six years and six months with a non‑parole period of four years to commence from 11 October 2002.
The offences to which the appellant pleaded guilty occurred between 16 March and 7 June 2000. The victim, whom I shall call “L”, was the appellant’s stepdaughter. She was aged about 14 at the time these offences occurred. The appellant married L’s mother when L was nearly three. He had therefore been in the position of father and guardian for most of the L’s life. The appellant and his wife subsequently had five other children.
The first count of indecent assault involved the appellant fondling L’s breasts under her pyjama top while she was in bed. The appellant went into L’s bedroom where she was sleeping with two of her siblings. L woke up as she felt someone rubbing her breasts. She said her pyjama top had been lifted up. She was afraid and pretended to be asleep. She said it seemed like this went on for hours. This offence was committed against a background of other uncharged similar instances. The sentencing judge therefore indicated that it could not be regarded as a one off isolated incident and the scope for leniency was reduced.
The second count also involved the appellant going into L’s bedroom. He had no shirt on and his pants were down. The appellant got into L’s bed. L woke up when she felt the appellant rubbing her breasts. The appellant pulled up L’s pyjama top so that her stomach and breasts were exposed. He then pulled L on top of him and moved her from side to side across his body. L was scared and again pretended to be asleep. The conduct continued for what to L seemed like half an hour.
In the incident which was the subject of count 3 L again woke up to find the appellant fondling her breasts. The appellant was sitting on the side of the bed. He sat L in his lap for some time and then he put her on the bed with her head in or near his lap. The appellant moistened L’s lips with his finger and then held her head and rubbed her lips up and down his erect and exposed penis. L thought this continued for about 15 minutes. L again pretended to be asleep. This offence also had to be seen against the background of two prior occasions when with his underpants on the appellant had placed L’s mouth in the area of his penis.
In the course of submissions the sentencing judge was provided with a report of a psychologist and a report of a psychiatrist which indicated that the appellant had a disturbed early home life and had been left with limited coping skills and some personality disorders. The appellant’s conduct was said to be probably the result of an immature personality compounded by an anxiety and a depressive disorder which may have been to some extent due to marital difficulties. The appellant had allowed himself to become increasingly aroused by the victim then knowingly abused her for his own gratification rather than controlling himself.
The appellant was remorseful for his conduct even at the time he was performing the acts and had sought counselling through his church as well as attending a six months sexual offenders’ treatment assessment program. The psychiatric report suggested that he would benefit from further treatment and his risk of re‑offending was described as relatively low.
At the time of sentencing the appellant was aged 34. He had been regularly employed and had no prior convictions.
On the hearing of the appeal counsel for the appellant submitted that both the head sentence and non-parole period were manifestly excessive having regard to the nature of the offences, the limited period of time over which they had occurred and the matters contained in the medical reports. He also submitted that the judge had given an inadequate discount to the appellant to reflect his plea of guilty.
In his sentencing remarks the judge indicated the sentence he considered appropriate for each of the offences before he applied the provisions of s 18A of the Criminal Law (Sentencing) Act to impose one sentence. He then indicated but for the appellant’s plea of guilty the sentence would have been seven years and six months. He then took the plea into account and reduced that sentence by one year. He then had regard to the principle of totality but indicated that he considered the sentence to be proportionate to the overall criminality and he did not believe that it would be so crushing as to call for any downward adjustment.
On the hearing of the appeal the Court was provided with a statement of agreed facts as to the timing of the appellant’s plea in the following terms.
“1.The appellant was charged on information in the Christies Beach Magistrate Court with two counts of indecent assault and two counts of unlawful sexual intercourse.
2.By a letter dated 4 June 2001 the appellant’s solicitor advised the Director of Public Prosecutions that the appellant was prepared to plead guilty to two counts of indecent assault. The factual basis of the proposed plea in the sense of the specific acts and the course of conduct which the appellant was proposing to acknowledge by his pleas was for practical purposes the same as the factual basis on which the pleas were ultimately entered.
3.The Director of Public Prosecutions did not accept the offer to plead. The appellant was committed for trial. An information was laid in the District Court charging the appellant with two counts of indecent assault and two count of unlawful sexual intercourse. The appellant pleaded not guilty to this information on 30 June 2001 and the matter was ultimately listed for trial on 3 September 2002.
4.On 27 August 2002 the Director of Public Prosecutions advised the appellant’s solicitor in writing that he was prepared to accept pleas of guilty to four counts of indecent assault in satisfaction of the information.
5.The appellant’s solicitor advised counsel for the Director of Public Prosecutions that the appellant was no longer prepared to enter pleas of guilty to indecent assault, that the appellant would be representing himself, and that the matter would proceed to trial.
6.A fresh information was filed on 2 September 2002 charging the appellant with three counts of indecent assault and one count of unlawful sexual intercourse.
7.A voir dire hearing commenced on 3 September 2002 and proceeded for five days.
8.On 13 September 2002 a further fresh information was filed charging the appellant with three counts of indecent assault. The appellant pleaded guilty to this information.”
L was not required to give evidence at the voir dire and the plea of guilty by the appellant also meant that L was not obliged to give evidence at the trial.
Since R v Shannon (1979) 21 SASR 442 it has been well established that a defendant is entitled to a discount with respect to a plea of guilty. King CJ at 452 set out those matters which are relevant to the discount in the following way:
“(1)A plea of guilty may be taken into account in mitigation of sentence where -
(a) it results from genuine remorse, repentance or contrition, or
(b) it results from a willingness to co‑operate in the administration of justice by saving the expense and inconvenience of a trial, or the necessity of witnesses giving evidence, or results from some other consideration which is in the public interest; notwithstanding that the motive, or one of the motives, for such co‑operation may be a desire to earn leniency,
and where to allow the plea a mitigatory effect would be conductive to the public purposes which the sentencing judge is seeking to achieve.
(2)A plea of guilty is not of itself a matter of mitigation where it does not result from any of the above motives, but only from a recognition of the inevitable, or is entered as the means of inducing the prosecution not to proceed with a more serious charge.
(3)In cases falling within (1), the judge is not bound to make a reduction, but should consider the plea with all the other relevant factors in arriving at a proper sentence.
(4)In assessing the weight to be attached to a plea of guilty as a factor making for leniency, it is proper for the judge to bear in mind that it is important to the administration of justice that guilty persons should not cause expense to the public and delay to other cases by putting forward false stories and on the basis of such false stories contesting the charges against them.
(5)The above propositions are not to be taken as weakening in any way the principle that there must be no increase in the sentence which is appropriate to the crime because the offender has contested the charge.”
In R v Slater (1984) 36 SASR 524 King CJ said at 526:
“The degree of co-operation in the administration of justice meriting a reduction in sentence is obviously considerably greater in the case of an offender who pleads guilty when he is first arraigned in the court than in the case of an offender who delays his plea of guilty until the morning of the trial when time of the court has been allocated and the witnesses and jurors summoned. I think that it is important, if the practical ends discussed in Shannon are to be served, that sentencing judges should make significant reductions in sentences in recognition of the co-operation in the administration of justice which the plea of guilty manifests and should explain that they are doing so. I think that it is important, too, that the reduction should be graduated according to the stage at which the plea of guilty is entered and should thereby reflect the degree of co-operation in the administration of justice which the offender has shown.”
More recently in Cameron v R (2002) 187 ALR 65 the High Court held that the operative consideration with respect to the discount was the defendant’s willingness to facilitate the course of justice not that the expense of the trial had been saved. Cameron was subsequently considered by the Court of Criminal Appeal in R v Place (2002) 81 SASR 395. The Court indicated that Cameron did not change the law in this State that the “utilitarianism” factor and the public interest could be taken into account in the discount allowed. The Court said (per Doyle CJ, Prior, Lander and Martin JJ) at [83]:
“...the current practice of taking into account the timing of the plea, contrition, cooperation with and assistance to the authorities should continue. We emphasise that in taking into account any subjective considerations, sentencing courts should not ignore those subjective considerations to the extent that they are relevant to other aspects of the sentencing task.”
The extent of the discount to be allowed for a plea is however a matter of discretion and cannot be reduced to any strict mathematical formula. In R v Moyle (1996) 186 LSJS 462 the Full Court indicated that the appropriate allowance for a plea of guilty fell within the range of 15 to 25 per cent with the lower discount likely to apply to a plea closer to trial but higher discounts have also been allowed. For example in R v Major (1998) 70 SASR 488 the Court of Criminal Appeal did not take issue with a discount of 40 per cent allowed for the unusual circumstances in which the prisoner had confessed to his crimes. In Walker v R (1994) 178 LSJS 271 the defendant voluntarily came forward and confessed to his crimes in circumstances in which it was unlikely he would otherwise have been apprehended and charged. In that case the Court indicated that it would have been appropriate to give a reduction of about one-third.
In this case the reduction allowed by the sentencing judge was about 13 per cent. The appellant did not however plead guilty until about 5 days after the voir dire had commenced. Although there was some dispute as to the dates upon which the various offences had occurred there appeared nevertheless to be a reasonably strong case against the appellant. Although the discount allowed by the sentencing judge may not be particularly generous I do not think that in all the circumstances it can be said that his sentencing discretion has miscarried.
In further support of his submission that the sentence was manifestly excessive counsel for the appellant referred to the decision of the Court of Criminal Appeal in R v D (1997) 69 SASR 413. He suggested that the conduct of D was more serious than that of the appellant but in D a sentence of six years with a non-parole period of four years and six months had on appeal been reduced to five years with a non-parole period of three years and six months.
In R v D the defendant pleaded guilty to the offence of persistent sexual abuse of a child contrary to s 74(1) of the Criminal Law Consolidation Act 1935. The victim was his 13 year old stepdaughter. The abuse took place over a period of two months and occurred on an almost daily basis. The abuse ranged from indecent assault, cunnilingus and fellatio to digital penetration of the victim’s vagina.
The Court in R v D examined the prevailing sentencing standards with respect to sexual abuse perpetrated against children and indicated that in the future sentences should be increased. The Court indicated that with respect to offences involving unlawful sexual intercourse with children under 12 years of age, when there are multiple offences committed over a period of time, there should be as a starting point a head sentence of about 12 years’ imprisonment. When the child in question was over 12 years of age the starting point should be a head sentence of about 10 years’ imprisonment: per Doyle CJ at 424. Under that regime the Chief Justice considered that the sentence of six years imposed would have been an appropriate sentence in all the circumstances. That would have represented a substantial discount from the appropriate starting point of approximately 10 years. That was due to some rather exceptional mitigating factors personal to the appellant: see Doyle CJ at 416; Bleby J at 429. Some of these factors are referred to below.
D was however required to be sentenced by reference to the earlier standard whereas the appellant was sentenced in the subsequent regime. From a factual point of view the extent and seriousness of the offending by D were greater than those of the appellant. The effect on D’s victim was catastrophic. However, the personal matters of mitigation operating in favour of D which required his sentence to be reduced included the fact that the defendant had ceased offending of his own volition, he had participated in family counselling knowing his offending was likely to be revealed, his cooperation with the police and indications of genuine contrition. In this case however the appellant’s conduct only came to light when L made a complaint to a teacher at her school. In addition, there were statements from both L and her mother which indicated that the appellant had endeavoured to dissuade L from giving a statement to the police. In my opinion therefore limited assistance can be obtained by comparing the circumstances of this matter with what occurred in R v D.
Counsel for the appellant further argued however that the appellant’s behaviour was in part attributable to what his father had done to him as a child and that was a further mitigating factor with respect to sentence. It is fair to say that matters set out in the medical reports do indicate that the appellant had a very disturbed upbringing which included quite significant and inappropriate sexual behaviour by his father towards him.
In R v AWF (2000) 2 VR 1 the Victorian Court of Appeal considered the relevance of childhood sexual abuse of an offender with respect to sentencing. The Court held that it should not be assumed that such abuse would automatically lead to some reduction of sentence and should only be given if the abuse which the offender suffered is connected with his own offending in a way which reduces his subjective or moral culpability.
Ormiston JA after referring to a number of authorities said at [6]:
“Clearly evidence of this kind is relevant, certainly where there is no dispute as to the existence of the abuse and there is some expert evidence to connect the abuse with the offender’s subsequent misbehaviour. One should be careful, however, not to assume that abuse of the kind will automatically lead to some reduction of sentence… it is not so much the cause that is important: rather it is the consequences which flow from those earlier events. If there is evidence to link them to a condition or state of mind which is a proper basis for viewing the criminality of an offender as less serious and for saying that specific or general deterrence (or both) should have a smaller part to play in the overall sentencing process, then that condition will have a greater relevance and significance.”
In his report in this case the psychiatrist expressed the opinion that, at the time of his offending, the appellant was suffering from an:
“...underlying Borderline Personality Disorder arising out of his disturbed early home life. This is a longstanding maladaptive pattern of behaving and feeling with associated marked feelings of chronic depression alternating with rage, disturbance of self-image and identity, disturbance in judgement, and difficulty establishing satisfying relationships with other people.”
The psychiatrist went on to say however that the appellant “was aware of his actions, knew the wrongfulness of them and would have been able to have controlled his conduct should he have chosen to do so”. In that circumstance I do not think there is a sufficient link between the appellant’s own mistreatment as a child and his present offending which would reduce the criminality of his behaviour such as to result in a lesser penalty for the reasons outlined in AWF. The appellant’s unfortunate background was a relevant matter for the judge to take into account in a more general way when reaching a conclusion as to an appropriate sentence but he appears to have had due regard to that. I can see no error in his approach. As Doyle CJ said in R v D at 423, with respect to offences against children committed by persons in a position of trust and authority:
“...such offences cause serious harm to the victim in many cases. There is every likelihood that the effects of that harm will be prolonged, and perhaps lifelong. The courts must do what they can to protect children from such conduct. Deterrence is an important part of sentencing for an offence such as this. Although reasons for the offending vary, and sometimes the offenders are persons who were themselves sexually abused as children, it seems clear that such offenders are not usually persons who are unable to control their sexual instincts. While acknowledging that the punishment of offenders is only one factor that may limit the incidence of this offence, the courts must proceed on the basis that punishment has a part to play in deterring offenders.
Offences such as the present one have an insidious effect upon the community, and that is also something to consider. They lead, and I suspect are already leading, to a loss of trust in the very persons upon whom we often rely for the nurture of children, for their education, and for guidance, leadership and instruction for children. As our society becomes more aware of the extent to which children are subjected to sexual abuse, this insidious effect is increasing.”

In my opinion the starting point taken by the sentencing judge of seven years and six months was appropriate, given the circumstances of this case and the standards set out in R v D for more serious offending. The discount for the appellant’s plea, which was not generous, was within the range available to the sentencing judge. There were no other factors which the sentencing judge overlooked and no other reasons justifying a more generous approach in fixing the head sentence.
The result is that the head sentence, while tending towards the upper end of the appropriate range, does not reflect a miscarriage, and I would not interfere with it.
However, in fixing a non-parole period I consider that the sentencing judge gave insufficient weight to the psychiatric evidence which included an opinion that, with further treatment, it was unlikely that the appellant would again engage in such offending, and that there was no indication that he represented a general risk to the community at large. His prospects for rehabilitation, given further appropriate treatment, which the appellant appears willing to undertake, would seem to be good. Those circumstances would warrant a longer period of parole than might otherwise be the case. I would allow the appeal for the purpose of substituting a non-parole period of three years and six months.
BLEBY J: I agree with the order proposed by Nyland J and with her reasons. I have nothing further to add.

[2003] SASC 119

30 April 2003