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

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.
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.
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.
BLUE J: I agree with Bampton J.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Harvey (No 2)

Details

AGLC: R v Harvey (No 2) [2014] SASCFC 106
Case: [2014] SASCFC 106
Decision Date: 29 September 2014

CaseChat Overview and Summary

This matter concerned a Crown appeal against a sentence imposed on the respondent, who had been found guilty of four counts of persistent sexual exploitation of a child. The respondent had been sentenced to two years' imprisonment, to be served cumulatively upon an existing six-year sentence for unlawful sexual intercourse committed in 2010. A non-parole period of three years and three months was fixed. The appeal was heard by Kourakis CJ, Blue and Bampton JJ.

The central legal issue before the court was whether the two-year sentence and the consequent non-parole period were manifestly inadequate, given the nature of the offences and the respondent's position of trust as director of an Out of School Hours Care program. The court was required to consider the importance of general and personal deterrence in sentencing for such offences.

The court reasoned that the sentence imposed failed to adequately reflect the principles of sentencing, particularly the paramount considerations of personal and general deterrence. The offending constituted a gross breach of trust, was committed against four victims over an extended period, and had caused significant community outrage. The court emphasised the insidious effect of such offences on community trust in those responsible for children's care, referencing established legal principles regarding the need for punishment to fit the crime and to mark societal condemnation. The court concluded that the sentence was manifestly inadequate and that the non-parole period, like the head sentence, must be proportionate to the gravity of the crime.

The court granted the Director's application for permission to appeal and allowed the appeal, finding the sentence to be manifestly inadequate.

Orders

Orders of the court

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Background

Background to the litigation

The maximum penalty for each count of persistent sexual exploitation is life imprisonment. Background 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 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. 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. The respondent resigned from his employment on 23 December 2010.The 2012 sentence In August 2011, the respondent pleaded guilty to one count of unlawful sexual intercourse with a person under 14 years. 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. 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 Following the 2012 sentence, the four counts of persistent sexual exploitation, all committed before the December 2010 offending, were reported to police. 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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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. 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. 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]. 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. 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.

Ratio Decidendi

Legal Principle Established

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