R v Halse No. Sccrm-97-212 Judgment No. S6403

[1997] SASC 6403

R  v  HALSE

Court of Criminal Appeal: Matheson, Duggan and Nyland JJ
(Ex tempore)

DUGGAN J

The appellant has appealed against sentence on an admitted charge of unlawful sexual intercourse with a girl aged approximately 15 years and 3 months. Initially he was charged with raping the complainant. Shortly after his arraignment, the appellant offered to plead guilty to the offence of unlawful sexual intercourse, but the offer was rejected by the prosecution.

The information was listed for trial to commence on 12 August 1997 but, approximately one week before the trial, the Director of Public Prosecutions accepted the appellant's offer to plead guilty to the offence of unlawful sexual intercourse. The appellant pleaded guilty to that offence on the date fixed for trial.
The plea was entered and accepted on the basis that the sexual intercourse was consensual; that no threats were made to induce co-operation; that the complainant was in the appellant's company willingly for considerable periods of time on the day of the event as well as the day before; and that the appellant believed the complainant to be of or above the age of 16 years and that he further believed that the legal age of consent was 16 years.
It was also contended by the appellant at the sentence hearing and not disputed by the prosecution that, at the complainant's request, the appellant did not ejaculate inside her; that she was not a virgin; and that she discussed this matter with the appellant before the offence. The complainant also engaged in an act of sexual intercourse with her boyfriend immediately after being dropped off by the appellant on the occasion of the offence.  Of course, none of these matters excuse the actions of the appellant, but it was argued on behalf of the appellant that they were mitigating factors.  I agree with the learned Director of Public Prosecution's submission that the fact of her having intercourse with her boyfriend does not establish maturity.
The appellant was 37 years of age, at the time of the offence. He has a long criminal history, including an offence of gross indecency, as a juvenile and an offence of attempted rape when he was 18 years of age.  He met the complainant through a mutual friend a short time before the offence.  The offence was committed when the appellant took the complainant for a drive and had sexual intercourse with her in the vehicle.
The learned sentencing judge accepted that the appellant was entitled to a reduction in sentence by reason of a plea of guilty made at the first reasonable opportunity. His Honour also took into account the fact that the appellant had been in custody for 10 and a half months on the present matter. However it was not possible to backdate the sentence because the appellant was on parole when it took place and, as at the date of the commission of the offence, the outstanding balance of the sentence imposed for the previous offence was 2 months and 28 days. This sentence came into effect immediately upon the imposition of the sentence for the present offence. (s75 Correctional Services Act, 1982). Furthermore, the sentencing judge was required, by the Criminal Law (Sentencing) Act, 1988 s31(2), to direct that the sentence for the present offence be cumulative upon the unexpired portion of the previous sentence.
The sentencing judge imposed a sentence of imprisonment for 8 months for the present offence.  This resulted in a head sentence of 10 months and 28 days when added to the balance of the sentence remaining in respect of the previous matter.  As the head sentence was less than 12 months, no non-parole period could be imposed.
The learned sentencing judge thought that the appropriate sentence for the present offence before any reductions was imprisonment for 2 years.  He did not say how much he allowed for the plea of guilty made at the earliest opportunity, but if he reduced the sentence by approximately 25%, as I think would have been appropriate, the sentence would have come down to 18 months.  Then, allowing for time spent in custody, the sentence would have been further reduced by 10 and a half months which would have brought it down close to the 8 months imposed by his Honour.
In my view, the application of the relevant statutory provisions has led to a measure of unfairness, in this case.  I think that if it had been possible to backdate the sentence, a non-parole period would have been appropriate. The appellant was deprived of this when the trial judge was left with no choice but to deduct the time spent in custody. If the sentence remains as it is then, at the end of it, the appellant will have served approximately 21 and a half months without a non-parole period being set.
In my view, the possible reduction of the head sentence by reason of this circumstance was a matter to be taken into account when fixing sentence.  It does not seem to have been considered by the sentencing judge, thus justifying the interference of this court if it is considered that, as a consequence of such failure, the sentence is inappropriate.
I have reached the conclusion that the sentence is inappropriate. This was not a case in which there was a breach of trust by an offender in relation to a young person with whom he had contact such as a family member or family friend.  (cf., R v Lane (unreported 16/8/95 S5125).
A most significant aggravating factor was the disparity in the ages of the appellant and the complainant.  However, in view of the loss of the benefit of a non-parole period and the circumstances of the offence itself, I think that a sentence of 18 months would have been adequate. I do not accept Mrs Shaw's argument that the time spent in custody was more than an adequate penalty. Reference was made, in the course of argument, to the case of R v Ahlburg (unreported 21/6/94 S4628).  In that case, the former Chief Justice said: "It is the purpose of the law prohibiting sexual intercourse with girls under the age of consent to protect young girls from the advances of men, older men, in particular, and to protect them from their own immature inclinations".  It is clear that this is the sort of case in which the principle referred to by his Honour applies with full effect.
If the period of 18 months which I have suggested as the starting point were then reduced to take account of the plea of guilty along with the period of 10 and a half months spent in custody awaiting the sentence, the appropriate period would be 2 months.  This would have the effect of requiring the appellant to spend a little over 12 months in custody, in respect of the offence of unlawful sexual intercourse.  It would have to be made cumulative on the balance of the unexpired portion of the previous sentence.
For these reasons, I would allow the appeal against sentence. I would quash the sentence imposed and substitute a sentence of imprisonment for 2 months for the offence of unlawful sexual intercourse.  I would direct that this be served cumulatively on the sentence of 2 months and 28 days outstanding, thus resulting in a total head sentence of 4 months and 28 days to commence on 15 August 1997.

MATHESON J

I agree with the order proposed by Duggan J and with his reasons.

NYLAND J

I agree with the order proposed by Duggan J and with his reasons.

MATHESON J

The order of the court will be as announced by Duggan J.