R v Harvey (No 2)

[2014] SASCFC 106

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HARVEY (No 2)

[2014] SASCFC 106

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Bampton)

29 September 2014

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE

Crown appeal against sentence for sex offending – respondent found guilty of four counts of persistent sexual exploitation of a child following a trial by Judge alone – sentenced to two years’ imprisonment – respondent was already serving sentence of six years’ imprisonment for unlawful sexual intercourse committed in 2010 – sentence was made cumulative upon existing head sentence – non-parole period of three years and three months was fixed – whether the sentence of two years and the consequent non-parole period are manifestly inadequate – respondent in a position of trust – importance of general deterrence and personal deterrence – sentence manifestly inadequate.

Held: Per Bampton J (Kourakis CJ and Blue J agreeing)

1. Permission to appeal granted; appeal allowed;

2. Sentence set aside; respondent resentenced to five years imprisonment cumulative on the head sentence of six years imposed on 9 February 2012;

3. The non-parole period reviewed and extended to six years and six months.

Criminal Law (Sentencing) Act 1988 (SA) s 10(4), s 18A, s 29D, referred to.
Everett v The Queen (1994) 181 CLR 295; MJDH v Director of Public Prosecutions (SA) (2013) 116 SASR 180; R v D (1997) 69 SASR 413; R v Quinn (2012) 114 SASR 354; R v MJJ, R v CJN (2013) 117 SASR 81; R v Lewis (1993) 60 SASR 582; R v Creed (1985) 37 SASR 566; R v McInerney (1986) 42 SASR 111; R v Bonython-Wright (2013) 117 SASR 410, considered.

R v HARVEY (No 2)
[2014] SASCFC 106

Court of Criminal Appeal: Kourakis CJ, Blue and Bampton JJ

1. KOURAKIS CJ:   I would allow the appeal and join in the orders proposed by Bampton J for the reasons she has given.  I make the following additional observations.

2. Even though the offending was non-penetrative, it is likely that the sexual connotation of the conduct was, or over time will be, sufficiently understood by the child victims to have a seriously disruptive effect on their psyche, or to at least pose a significant risk of such harm.

3. Moreover, for the reasons articulated in the judgment of Bampton J, personal and general deterrence demand a substantial term of imprisonment notwithstanding the relatively less severe form of the offending.

4. BLUE J:   I agree with Bampton J.

5. BAMPTON J:      The Director of Public Prosecutions (“the Director”) applies for permission to appeal against a sentence imposed in the District Court.  The respondent was found guilty of four counts of persistent sexual exploitation of a child following a trial by Judge alone.  He was sentenced to imprisonment for two years.  At the time of the sentence, the respondent was serving a sentence of imprisonment for six years with a non-parole period of two years for an offence of unlawful sexual intercourse committed on 1 December 2010 (“the December 2010 offending”).  The sentence of two years was made cumulative upon the existing head sentence of six years.  A non‑parole period of three years and three months was fixed. 

6. The Director contends that the sentence of two years and the consequent non‑parole period are manifestly inadequate and the error is such as to erode the standards of punishment appropriate for such offending and shock the public conscience.

7. The maximum penalty for each count of persistent sexual exploitation is life imprisonment.

   Background

8. The respondent was the director of the Out of School Hours Care program (“OSHC”) at a Department for Education and Child Development Primary School between January 2007 and December 2010.  The program ran sessions before and after school and during the school holidays and catered for children aged between five and 12 years.  Each OSHC session was supervised by at least two staff members. 

   The December 2010 offending – unlawful sexual intercourse

9. On 1 December 2010, the respondent took a seven year old girl who attended the program during 2010 into the school canteen to help prepare snacks for the other children.  While in the canteen the respondent blindfolded the girl and placed his penis in her mouth pretending it was a carrot.  That evening, at home, the girl burst into tears and told her mother what had happened.

10. The following day, police interviewed the respondent and searched his house.  The police found adult pornography concerning foot fetishism during the search. During his interview the respondent suggested that the blindfold game was an innocent game that must have been misinterpreted.  However, subsequent forensic analysis detected the girl’s DNA inside his underwear.

11. The respondent resigned from his employment on 23 December 2010.

    The 2012 sentence

12. In August 2011, the respondent pleaded guilty to one count of unlawful sexual intercourse with a person under 14 years.

13. The Judge who sentenced the respondent for this offence said the penalty he imposed must reflect the fact that the respondent was to be punished for what he had done to an innocent child.  He said it must also reflect a message of general deterrence to others in the community who might be charged with the care of children and that it must serve as a direct deterrent to the respondent to dissuade him from any future like conduct.

14. On 9 February 2012, the respondent was sentenced to imprisonment for six years with a non-parole period of two years.  The Judge proceeded on the premise that the appellant had not committed any sexual offences against children other than the offending for which he was to sentence the appellant.  The Judge fixed a lower than usual non-parole period, taking into account the respondent’s significant health problems and that he had “reasonably good prospects of rehabilitation and a relatively low risk for reoffending as long as” he undertakes sexual offender rehabilitation in prison and upon release.  That prognosis has been undermined by the subsequent discovery that the appellant had also offended against four other children in the same OSHC program.

    The four counts of persistent sexual exploitation

15. Following the 2012 sentence, the four counts of persistent sexual exploitation, all committed before the December 2010 offending, were reported to police.

16. The offences were committed on the school premises where the OSHC program was conducted, namely the canteen, the OSHC office and the Blue Room that housed a sofa and a TV.  During 2010, the school hall underwent renovation.  This was significant in that the victims were able to anchor the timing of certain of the offending against them by reference to when the renovations were taking place.

    Count 1

17. The acts of sexual exploitation committed against the victim of count 1, (“A”), were an act of gross indecency when the respondent exposed his penis and indecent assaults.  The indecent assaults comprised biting of A’s toes for sexual pleasure against a background of chest tickling.

18. Over a two year period when A was aged eight and nine, the respondent used to take her to the canteen to get the fruit platter.  He would put A on the canteen table, tickle her chest under her top and, having removed her shoes, bite her feet.  The tickling and foot biting occurred once every two weeks over the two year period.  On an occasion during the time of renovations to the school hall, the respondent took A alone into the canteen.  Having tickled her in the canteen and bitten her feet, the respondent went to the office and returned with a blue blindfold.  He put the blindfold on A and then she crawled on the floor.  Because she could not see what was going on, she peeked from underneath the blindfold and saw the accused’s penis through his pant hole.  A said that he had his hands down his shorts and was holding his penis.  A then covered the blindfold so she was not peeking anymore and stood up.  By then, he had moved and he said, “Come on, stop, let’s go back”. 

    Count 2

19. The acts of sexual exploitation against the victim of count 2, (“B”), were indecent assaults committed when the respondent bit B’s toes for a sexual purpose against a background of chest tickling.

20. B was aged five, six and seven over the three year period during which the respondent offended against her.  When B was alone with the respondent, he pulled up her top, tickled her on her breasts, then took off her socks and bit her feet. This occurred usually every day in the Blue Room and once in the canteen.

    Count 3

21. The offending against the victim of count 3, (“C”), occurred within a single school year when she was eight years of age. The acts of sexual exploitation were indecent assaults committed when the respondent bit C’s toes for a sexual purpose against a background of chest tickling.

    Count 4

22. The acts of sexual exploitation against the victim of count 4, (“D”), were also indecent assaults committed when the respondent bit D’s toes for a sexual purpose against a background of chest tickling.

23. The offending occurred over a period of about two years when D was five and six years of age.  The offending took place a couple of times a week in the Blue Room and the office before and after the renovations.  The respondent took D to his office so that she could be his “little helper”.  He tickled her in the nipple area.  He sat her on a table in the office, gave her a lolly, played “little piggy” and bit her toes.

    The victim impact statements

24. The victim impact statements describe the damaging impact the offending has had upon the victims, their families and the school community. 

25. Parents feel guilt in not being able to protect their children.  The erosion of trust brought about by the offending has denied children participation in normal childhood activities.  For example parents have not allowed their children to attend school camps or sleepovers.  Parents have been very wary and anxious of their children being cared for by males.

26. Families have suffered financially and parental relationships have been strained.

27. The school community’s victim impact statement details the devastating consequences wrought by this offending.  Unsubstantiated allegations have been made against other people involved in the care of children.  Reputations of individuals and that of the whole school community have been tarnished.  The statement poignantly describes how “an instant lack of trust enveloped the school” and that “the impact that one person can have on an entire community is unfathomable but that community’s ability to overcome such odds is absolutely amazing”.

    Personal circumstances of the respondent

28. The respondent was 43 at the time he was sentenced for the four counts of persistent sexual exploitation.  His only criminal antecedent was the conviction for the December 2010 offending.

29. The sentencing Judge noted that the respondent had an unremarkable upbringing and that his mother and siblings remain supportive of him.

30. The respondent was educated to Year 12 and until his arrest in 2010 had been in continuous employment.  He had spent most of his working life working in childcare.

31. The significant health issues suffered by the respondent are detailed in the medical and psychological reports provided to the 2012 sentencing Judge during submissions for the December 2010 offending.  No further or supplementary information was provided to the Judge who sentenced the respondent for the four counts of persistent sexual exploitation or to this Court. A summary of the information provided to the 2012 sentencing Judge follows.

32. The respondent’s major health issue is progressive renal failure.  He was born with congenital defects in his kidneys with the result that the kidneys were progressively damaged throughout his early life until the disorder was detected when he was aged 18.  By that time significant damage had been done.  Initial surgery to correct both kidneys was successful but it could not reverse the damage.  By the time he was 21, he had started haemodialysis three times a week.  He thereafter underwent a kidney transplant.  However, four and a half years later his body rejected the transplanted organ.  The respondent suffers from complete renal failure and requires three sessions a week of dialysis, each session lasting five hours.  The treatment will continue into the future, as the respondent has no prospect of undergoing a kidney transplant because he suffers low blood pressure.

33. In 1996, the respondent suffered serious injuries in a motorbike accident.  As a result of those injuries he walks aided by a stick.

34. In 2004, the respondent underwent bowel surgery to remove 15 cm of necrotic bowel and had to wear a colostomy bag for a year. 

35. In 2009, the respondent suffered a stroke whilst on haemodialysis.  He was semi‑comatose for about five weeks and required intensive rehabilitation over a two month period.  He appeared to make a satisfactory recovery from that point and was able to live independently and go back to work. 

36. The renal specialist, Dr Stephen McDonald, provided a report dated 14 July 2011 detailing the nature of the treatment the respondent required and his prognosis.  It was noted that his condition causes him to have an elevated mortality risk.

37. The Clinical Director of the South Australian Prison Health Service, Dr Peter Frost, in a letter dated 5 September 2011, indicated that the respondent’s health conditions could be monitored and treated by the Prison Health Service. 

38. There is some psychosocial evidence that suggests that the stroke suffered by the respondent in 2009 caused him to be less inhibited and allowed him to act on his sexual thoughts.  To a limited extent the neuropsychologist, Dr Colin Field, who had examined the respondent, concluded that there might be a connection between his organic brain deficit and level of impulsiveness.  However, there was no suggestion that he did not understand what he was doing and no suggestion that he lacked capacity to control his actions.

39. After pleading guilty to the unlawful sexual intercourse offence, the respondent sought admission to a child sexual offenders program offered by Owenia House.  He was assessed, found suitable and put on a waiting list.  The psychologist, Ms Alex Brooks, who assessed the respondent, said in her report dated 29 November 2011 (before the four counts of persistent sexual exploitation had come to light) that:

    Mr Harvey appeared self focused.  For instance, Mr Harvey offended in December 2010, yet only attended Owenia House just prior to his first attendance in the District Court.  The timing of his attendance at Owenia House suggests that Mr Harvey was motivated to benefit himself by presenting a desirable image to the Court rather than engaging in treatment.  In addition, Mr Harvey’s intent to “move on” from the school, combined with his initial denial and rationale for pleading guilty reflects a self focus. Gaining knowledge about victim impact issues is one way in which Mr Harvey will be encouraged to shift his focus from himself to others, thereby reducing his risk of re-offending.

    Mr Harvey denied any sexual interest in children and denied any sexual arousal to the child he sexually abused.  It is difficult to believe that Mr Harvey has no sexual interest in children, particularly given his sexual abuse of a child, extensive involvement with children and lack of connection with adults.  It is more likely that Mr Harvey has struggled with sexual thoughts about children for an extended period of time and that the CVA had a disinhibiting effect on his behaviour.  Engaging in sexual thoughts about children is a risk factor for further sexual offending, as is Mr Harvey’s apparent level of disinhibition brought about by his CVA.

    Given all the factors outlined above, it is imperative that Mr Harvey have no current contact with children, in particular his 6 year old god-daughter.

40. Ms Brooks’ scepticism about Mr Harvey has proven to be correct.  Ms Brooks was also of the opinion that the respondent had very limited insight into his behaviour in committing the December 2010 offending and the reasons leading to it.  He had very limited understanding of the impact that offending had upon the victim and her family.  These were all noted to be matters of concern which would need to be addressed during a specialised sex offender treatment program extending over a one and half to two year period.

41. In his report dated 14 October 2011, the psychologist, Mr Richard Balfour (who also assessed the respondent prior to the four counts of persistent sexual exploitation had come to light) stated:

    In the final analysis I believe that Mr Harvey’s offending behaviour is the actions of a sexually frustrated and inadequate man who exploited the victim to satisfy his unmet sexual needs. 

    The sentence for the four counts of persistent sexual exploitation

42. The sentencing Judge observed that all sexual offending against children is serious and abhorrent.  He further observed that he accepted that this offending is at the lower end of the scale of seriousness, at least in terms of physical seriousness. 

43. The Judge said that the offending was a gross breach of trust and the far reaching consequences were such that general deterrence remained a very important consideration. 

44. The Judge accepted the submission made on behalf of the respondent that, given the time the respondent had spent in custody, personal deterrence was not as great a consideration as it often is.  He noted that the respondent did not accept his verdict and that no credit was to be given for remorse.  His Honour accepted that the respondent’s health issues were such that his time in custody would be more difficult than for the average prisoner and said that he made a small allowance for that in fixing the new non-parole period.  His Honour indicated that, had he fixed separate sentences, he would have ordered partial concurrency as the offending was one course of conduct. 

    The appeal

45. Applications for leave to appeal by the Director should only be granted in “rare and exceptional” circumstances.[1] 

    [1]    Everett v The Queen (1994) 181 CLR 295, 299-300.

46. The Director submits that, given the nature of the offending and the principles that surround sentencing in cases of this type, the sentence imposed is manifestly inadequate.  It is contended that the sentence itself reflects the error.  It fails to adequately reflect the seriousness of the offending, the position of trust, the number of victims and the absence of any mitigating factors.

47. The Director takes no issue with the Judge’s characterisation of the physical acts but submits that this should not be allowed to obscure how serious this offending was.  It is submitted that the physical acts must be viewed in light of all the other factors that had to be brought to account in arriving at a proper sentence.  The factors that demonstrate that the offending was very serious include:

    ·the number of children;

    ·the degree of persistence;

    ·the position of trust the respondent held; and

    ·the impact the offending has had upon the victims, their families and the community.

    It is argued that the impact of this offending was a matter to be given significant weight in sentencing and that, while the nature of the acts committed was a vital matter to consider, it was but one matter to be considered.  The impact upon the victims, their families and the wider community starkly illustrates how the seriousness of the physical acts cannot be allowed to obscure the true seriousness of the offending.

1. It is submitted that personal circumstances are to be given less weight in such offending and a person’s otherwise good character is of diminished, or little, significance when the offending involves an ongoing course of conduct.

2. Further it is submitted that personal deterrence was a significant matter to be reflected in the sentence despite the time the respondent had spent in custody. The respondent maintained his innocence. It is submitted that this, together with the nature of the offending, leads to the conclusion that the respondent’s proclivity to offend is entrenched.

   The respondent’s submissions

3. The respondent contends that this is not one of the rare and exceptional circumstances where permission to appeal should be granted.  It is submitted that the sentence is not so disproportionate to the seriousness of the crime so as to shock the public conscience.  It is submitted that there is no process error identified in the sentence.  The respondent is serving a long sentence, whilst enduring severe problems including a significant mortality risk based on his kidney disease. 

4. The respondent submitted that what is required is an evaluative judgement as to the relationship between sentence and offender and offending and success on a Crown appeal turns on that relationship being determined to be so disproportionate as to warrant interference.

   Analysis

5. The respondent’s conduct was a gross abuse of trust for his own sexual gratification.  As stated by the Chief Justice in MJDH v Director of Public Prosecutions (SA),[2] this type of offending is aggravated because the offender surrendered his or her responsibility to protect the victim to his psychologically and sexually disturbed state.

   [2] (2013) 116 SASR 180, [39].

6. The respondent took the children he described in his record of interview as “good”, “well behaved” or “helpful” to the quiet of the canteen, the Blue Room or the office.  The children were particularly vulnerable by reason of their young age and it would appear their keenness to please.  He exploited their naivety and innocence by engaging them in play by tickling, blindfolding and using a nursery rhyme so that he could commit acts of sexual exploitation.

7. As Ms Brooks observed in her report:

   Assuming that OSHC’s are quite conscientious about child protection issues, it would be expected that children are not intentionally left alone with OSHC workers. However Mr Harvey regularly took a child to the canteen, which is an isolated area separate from OSHC. Mr Harvey’s regular engagement in this behaviour normalised the process of him going to the canteen with a child and was likely to send a message to OSHC workers and children alike that it was a safe thing to do.  Normalising access to the children and decreasing other people’s suspicions are a part of grooming to offend.

8. The respondent had ample opportunity to be alone with the children by virtue of the relative solitude of the before/after school environment.  He was able to commit his sexual offending when very few people, in particular adults, were around. His position as the director of the OSHC program meant that he was unlikely to be questioned about being alone in the canteen, the office or the Blue Room with a child.  The OSHC workers were unlikely to interrupt him as they would have been occupied supervising the other children. 

9. The respondent was caring for young children in an OSHC program specifically designed as a bridge between school and home.  OSHC takes the place of a home environment until parents are able to take children back into their care.  It is intended to provide relaxation, play and nurture.  The respondent’s conduct was a breach of the trust parents and the school community vested in him to keep the children safe.  He has severely shaken the community’s confidence and trust that they can safely leave children in childcare environments.

   General deterrence

10. The fact that each of the offences was committed from such a position of community trust demands a strongly deterrent sentence as “it is of great public importance that children are protected from the insidious advances of the very persons the community charges with the responsibility of protecting them”.[3]

    [3]    R v Bonython-Wright (2013) 117 SASR 410, [100].

    Personal deterrence

11. Personal deterrence is of particular significance in the respondent’s case.  He was serving the 2012 sentence at the time of the trial of the four counts of persistent sexual exploitation.  He maintained his innocence, was found guilty and did not accept the verdicts.  As submitted by the Director, the nature of the conduct, and its repeated nature against a number of victims, leads to the conclusion that the respondent’s behaviour is entrenched.

12. Ms Brooks pertinently concludes her report, remembering that she assessed the respondent before the persistent sexual exploitation offences came to light, by saying:

    Mr Harvey denied any sexual interest in children and denied any sexual arousal to the child he sexually abused.  It is difficult to believe that Mr Harvey has no sexual interest in children, particularly given his sexual abuse of a child, extensive involvement with children and lack of connection with adults.  It is more likely that Mr Harvey has struggled with sexual thoughts about children for an extended period of time and that the CVA had a disinhibiting effect on his behaviour.

13. This conclusion strongly suggests that the respondent’s circumstances fall into those circumstances identified by King CJ in R v McInerney,[4] where “the nature of the subsequent offences may be such as to suggest that a greater degree of personal deterrence than would otherwise have been contemplated, is required”.

    [4] (1986) 42 SASR 111, 113.

    Conclusion

14. In my view, the Director’s application for permission to appeal should be granted and the appeal should be allowed. The sentence does not acknowledge relevant principles prescribed by section 10(4) and section 29D of the Criminal Law (Sentencing) Act 1988 (SA). Paramount consideration must be given to personal and general deterrence.

15. The head sentence and non-parole period had to reflect that this offending was a gross breach of trust, that it was not an aberration or a momentary lapse of judgement,[5] that it was committed against four victims over an extended period of time and that it has caused a feeling of outrage and revulsion in the community.[6]  The damaging impact the offending has had is the very insidious effect referred to by Doyle CJ in R v D:[7]

    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.

    [5]    R v Quinn (2012) 114 SASR 354, [31].

    [6]    R v D (1997) 69 SASR 413.

    [7] (1997) 69 SASR 413, 423.

16. Further, the victim impact statements strongly resonate with the impacts of such offending as described by the Chief Justice in R v MJJ, R v CJN:[8]

    There is no doubt that victims of sexual abuse and their families carry a substantial psychological and financial burden.  There is also a great social cost to the community.  Community anxiety about sexual offending curtails the freedom of children to explore their environment in a way which is a necessary part of their psycho-social development.  It also generates increasing suspicion and sensitivity about completely innocent behaviours.  The great personal and social harm caused by sexual offending against children demands a strongly deterrent sentencing response.

    [8] (2013) 117 SASR 81, [84].

17. It follows that in a case such as this “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”.[9]

    [9]    R v Lewis (1993) 60 SASR 582, 584.

18. The non-parole period, as much as the head sentence, “must reflect the basic consideration of justice that the punishment should fit the crime”[10] and must also be properly proportionate to the gravity of the crime.[11]

    [10]   R v Creed (1985) 37 SASR 566, 568.

    [11]   R v Creed (1985) 37 SASR 566.

19. In resentencing I would impose one sentence for all four offences using section 18A of the Criminal Law (Sentencing) Act 1988 (SA).

20. I consider that if section 18A is not utilised, the four offences required sentences that were partly concurrent. Structuring the sentences in this manner would reflect the criminality of each offence while taking account of the elements that the offences have in common.

21. I consider a notional sentence of two years and six months is appropriate for count 1, and that notional sentences of between one and two years should be imposed on the remaining counts.  In cases of violent and sexual offending against different victims, there are good reasons to impose cumulative sentences and relatively less room for concurrency notwithstanding the temporal and causal connections between the offences.  I would order the commencement of the sentences so that they were either served cumulatively or with a degree of concurrency which was not more than 50 per cent of the preceding sentence.

22. Using section 18A, the head sentence I would impose to reflect the deterrent and preventative purposes of punishment is a head sentence of imprisonment for five years. I would order that the sentence be served cumulatively upon the 2012 sentence of imprisonment for six years, resulting in combined head sentences of imprisonment for 11 years.

23. I would review and extend the non-parole period to six years and six months.

24. I would make the following orders:

    1grant permission to appeal;

    2allow the appeal;

    3set aside the sentence;

    4impose a sentence of imprisonment for five years cumulative on the head sentence of six years imposed on 9 February 2012;

    5review and extend the non-parole period to six years and six months;

    6the head sentence and the non-parole commence from the date the respondent commenced serving the 2012 sentence on 9 February 2012.