R v HILL - [2010] SASCFC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HILL
[2010] SASCFC 79
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Vanstone and The Honourable Justice David)
24 December 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Application by Director of Public Prosecutions for permission to appeal against sentence imposed for three indecent assault offences committed some 40 years ago - victim five years of age at outset of conduct - respondent held senior position within institution at which victim housed - whether allowing sentence to stand would erode sentencing standards.
Held: appeal allowed - sentence increased.
Criminal Law Consolidation Act 1935 s 70(1)(c); Criminal Law (Sentencing) Act 1988 s 18A, referred to.
Everett v The Queen; Phillips v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227, applied.
R v D (1997) 69 SASR 413, discussed.

R v HILL
[2010] SASCFC 79
Court of Criminal Appeal: Duggan, Vanstone and David JJ

DUGGAN J: In my view permission to appeal should be granted and the appeal allowed.
I agree with the reasons and orders proposed by Vanstone J.
VANSTONE J. The Director of Public Prosecutions applies for permission to appeal against a sentence imposed in the District Court for offences of a sexual nature committed many years ago against a young child.
The respondent was found guilty by verdicts of a jury of three counts of indecent assault and acquitted of a further three counts. The first two of the offences were committed on one occasion at the institution in which the victim was then housed and at which the respondent worked. The judge found that these offences occurred as part of a course of similar conduct. The third offence occurred in different circumstances and was treated as the only one of its type.
The maximum penalty for indecent assault contrary to s 70(1)(c) of the Criminal Law Consolidation Act 1935 as it then stood is seven years imprisonment. The judge used s 18A of the Criminal Law (Sentencing) Act 1988 to impose one term of imprisonment in respect of all three offences. The respondent was sentenced to 2 years and 3 months imprisonment with a non-parole period of 16 months.
The Director submits that the sentence is simply too low, having regard to the seriousness of the course of offending. It is said that to allow the sentence to stand would tend to erode the standards of sentencing in relation to sexual offences which standards have been established in a number of decisions in this Court.
Background
At the time the offending commenced the respondent was about 30 years of age. He held the position of deputy superintendent of the Church of England Walkerville Boys’ Home, known as Kennion House. The complainant came to…

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 HILL

Details

AGLC: R v Hill [2010] SASCFC 79
Case: [2010] SASCFC 79
Decision Date: 24 December 2010

CaseChat Overview and Summary

The Director of Public Prosecutions applied for permission to appeal against a sentence imposed on the respondent for three indecent assault offences. The offences occurred approximately 40 years prior to the appeal, when the victim was five years old and the respondent held a senior position within the institution where the victim resided. The Director contended that the original sentence was too lenient and that allowing it to stand would undermine established sentencing standards for sexual offences. The appeal was heard by Duggan, Vanstone, and David JJ.

The central legal issue before the court was whether the sentence imposed was manifestly inadequate, to the extent that it would erode sentencing standards and shock the public conscience. The court was required to consider the seriousness of the offending, the gross breach of trust involved, the victim's extreme vulnerability, and the respondent's exploitation of that vulnerability, balanced against the significant passage of time since the offences and the respondent's subsequent law-abiding life.

The court found that the original sentence failed to adequately reflect the gravity of the offences and the circumstances in which they were committed. It was determined that the sentence was so low as to be out of step with established sentencing standards and to shock the public conscience. The court reasoned that the respondent's position of authority and the victim's tender age and isolation created a profound breach of trust, which the original sentence did not adequately address. Consequently, the court allowed the appeal and increased the sentence.

Permission to appeal was granted, and the original sentence was set aside. The court imposed a total head sentence of six years imprisonment, comprising two years on count 1 and three years on count 2, to be served concurrently, and three years on count 6, to be served cumulatively. A non-parole period of three and a half years was set, with the sentence deemed to commence on 9 February 2010.

Orders

Orders of the court

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Background

Background to the litigation

The Director submits that the sentence is simply too low, having regard to the seriousness of the course of offending. It is said that to allow the sentence to stand would tend to erode the standards of sentencing in relation to sexual offences which standards have been established in a number of decisions in this Court.Background At the time the offending commenced the respondent was about 30 years of age. He held the position of deputy superintendent of the Church of England Walkerville Boys’ Home, known as Kennion House. The complainant came to live at that institution when he was five years of age. At that time his mother found herself unable to care for him following her separation from her husband. The six charges of indecent assault upon which the respondent was tried were particularised in identical terms. Each offence was said to have occurred between 29 June 1969 and 17 November 1971 at Walkerville. The first two offences were committed not long after the victim began living at the Home in June 1969. The sixth count was said to be the last sexual assault upon the victim, close to the time when the respondent left the Home, in November 1971. The respondent was convicted only on the first, second and sixth counts. The complainant said that the first two offences occurred in the respondent’s flat, which was within the building used for teenage accommodation at the Home, but having a separate entrance. The facts upon which the judge sentenced were that the respondent carried the complainant from the grounds of the Home to his flat, undressed him, placed him in the bed and then joined him, naked, in the bed. He then fondled the complainant’s penis and testicles. That was count 1. He also placed a finger in the complainant’s anus, that act being count 2. He also described the respondent moving behind him and feeling something hard between his legs, suggestive of simulated anal intercourse. The complainant described this incident as occupying quite a long period of time. The judge accepted that on numerous occasions similar conduct occurred in the same location. Count 6 was of a quite different nature. This occurred in a private swimming pool to which the complainant and a couple of other children had been taken by the respondent. It occurred after a conversation between the complainant’s mother and the respondent in which she had asked the respondent if he had noticed anything wrong with her son. He had asked her whether the boy had said anything to her and she had replied that he had not. The respondent told her to “leave it with him” and said he was taking special care of the complainant; that he would find out and get back to her. The complainant described the incident as a fondling of his penis and testicles in the deep end of the swimming pool, followed by an instruction that what occurred between them must be kept a secret and the words: “You will never tell or I will kill you”. This last was said, according to the complainant, at a time when the boy had been taken by the respondent away from the edge of the swimming pool so that he had no support. He could not swim. The respondent then let him go, whereupon the complainant started panicking and screaming. The boy thought he was drowning. At that point the respondent lifted him out of the water onto the edge of the pool.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

VANSTONE J (dissent)

I have reached the conclusion that the Director’s application must be granted and the appeal allowed. To do otherwise would be to allow a manifestly inadequate sentence to stand and to erode sentencing standards. As I have said, these offences represent a gross breach of trust. The victim, aged only five years, was entrusted to the care of the appellant in circumstances where his mother, and indeed the community, were entitled to expect that he would be protected and nurtured. Instead, his isolation and vulnerability were exploited by the appellant. The sentence imposed simply fails to reflect these facts. It is out of step with the established standards. In my view the sentence is so low as to shock the public conscience. While I recognise that the appellant’s apparently law-abiding life since these offences is a matter of significance, it does not persuade me that this Court should not intervene.Conclusion I consider that, approaching the matter in the way the judge did and utilising s 18A of the Sentencing Act, a sentence of imprisonment within the range of six to nine years was justified. I would prefer to impose individual sentences. Giving full weight to the long period that has passed since this offending occurred and bearing in mind that this is a Director’s appeal, I would impose a sentence on count 1 of two years and on count 2 of three years imprisonment, to be served concurrently. On count 6 I would impose a sentence of three years to be served cumulatively upon the sentence for counts 1 and 2. Against the total head sentence of six years, I would set a non-parole period of three and a half years. Like the judge, I would “backdate” the sentence to 9 February 2010 when the respondent was taken into custody. For the reasons given I would propose the following orders:1.grant permission to appeal to the Director of Public Prosecutions;2.allow the appeal and set aside the sentence imposed;3.in its place sentence the respondent to terms of imprisonment on count 1 of two years and on count 2 of three years, to be served concurrently and on count 6 of three years, to be served cumulatively, giving a total head sentence of six years with a non-parole period of three and a half years, deemed to commence on 9 February 2010. DAVID J: In my view permission to appeal should be granted. I would allow the appeal. I also agree with the orders proposed by Vanstone J.

Ratio Decidendi

Legal Principle Established

Established by:

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