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

1. DUGGAN J:         In my view permission to appeal should be granted and the appeal allowed.

2. I agree with the reasons and orders proposed by Vanstone J.

3. 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.

4. 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.

5. 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.

6. 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

7. 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.

8. 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.

9. 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.

10. 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.

11. Shortly after the commission of count 6 the respondent’s employment was terminated.  That was as a consequence of being charged with the indecent assault of another boy at the Home.  That charge led to a term of imprisonment of eleven months.

12. In sentencing for count 6 the judge said he would disregard evidence of uncharged acts involving claims of indecent handlings in the presence of other persons.  The counts upon which the respondent was acquitted were allegations of that nature.

    Arguments on appeal

13. Mr A. Kimber SC, for the Director of Public Prosecutions, did not point to any specific error in the sentencing process.  His submission was that the sentence imposed was simply too low.  He highlighted the serious nature of the allegations, the age of the victim and the fact that the offences spanned a period of about two years.  He noted that the abuse was only brought to an end by the respondent being forced to leave the Home.  He pointed to the previous offence for indecent assault committed upon another child at the Home, apparently involving the respondent paying a child to stimulate him to ejaculation.  He referred to the profound impact of the offending upon the victim.

14. Mr Kimber argued that the sentencing should have been informed by the principles discussed in R v D (1997) 69 SASR 413. He asked rhetorically what sentence would have been appropriate had the respondent pleaded guilty, or in the absence of the uncharged offending similar to counts 1 and 2, or in the absence of the highly relevant prior conviction. Senior counsel argued that notwithstanding the high hurdle faced by the prosecution upon an appeal by the Director, the sentence failed to reflect the need for deterrence and the revulsion in the community about offences such as these.

15. Mr P Muscat SC for the respondent accepted that the offences were serious, but argued that the sentence was not manifestly inadequate.  He put that the principles discussed in R v D could not readily translate to the circumstances of this case, where the convictions recorded were for offences committed only on two occasions and where the judge specifically disavowed reliance on much of the course of conduct described by the complainant.  Mr Muscat suggested that, had separate sentences been imposed for counts 1 and 2, they would have been made concurrent and a term would have been fixed against a maximum of seven years, rather than the available combined maximum of 14 years.  He stressed that the uncharged conduct comprising allegations similar to counts 1 and 2 could not be used to increase the sentence, but could only deny to the respondent leniency which he might otherwise have been afforded.

16. In respect of count 6 Mr Muscat argued that the threat to the boy’s life conveyed to him in the swimming pool could have been and was not charged as a separate offence and therefore should be disregarded for the purpose of fixing a sentence.

17. In dealing with the respondent’s personal circumstances, Mr Muscat pointed out that he was now 71 years of age and that the offending had occurred some 40 years ago.  There was no suggestion of any offending subsequent to that period.  Mr Muscat suggested that it could be inferred that there was no risk of re-offending.

    Analysis

18. Each of the three offences is, in its own right, a very serious example of an indecent assault.  Setting aside the charges of which the respondent was acquitted and the uncharged allegations of conduct comparable to those, there still remained a substantial course of conduct over a prolonged period;  conduct which involved the most reprehensible breach of trust.

19. In R v D this Court dealt with an appeal against sentence by a man who had pleaded guilty to an offence of persistent sexual abuse of his stepdaughter, a child over the age of 12 years.  Multiple assaults over a two month period were admitted.  Doyle CJ discussed a number of cases where sentences had been imposed for repeated sexual offences committed against children.  He indicated that in future sentences for such offending should increase, a warning in which Bleby J joined.  Doyle CJ indicated a general approach or standard which should guide judges when sentencing for such courses of conduct.  Where the victim was under the age of 12 years, it was said that a starting point as high as 12 years imprisonment might be indicated:  R v D at 424. While much of the general discussion in the reasons of Doyle CJ is relevant and helpful in the present case, I do not consider that a starting point as high as 12 years was here called for. That is because here, due to the acquittals and the primary court’s judgment that the victim’s evidence of uncharged acts in circumstances comparable to those should be ignored, the proved conduct is of a more limited nature. The differing verdicts call for a clear focus on the conduct for which the respondent was convicted. But, as I have said, the proven conduct was of the utmost seriousness.

20. I do not agree with Mr Muscat’s submission that were separate sentences to be imposed in respect of counts 1 and 2, they would have been ordered to be served concurrently.  In my view they might have, but, either way, the essential requirement would have been to properly reflect the criminality involved in the respondent’s conduct.  The offending constituted by count 6 was, again, extremely serious.  I disagree with Mr Muscat’s submission that the threat by the respondent was to be disregarded.  Plainly, it was an aggravating circumstance of the indecent assault.  In fact, that this offence occurred after the victim’s mother had spoken to the respondent of her concerns for him, demonstrated an astonishing attitude of self-confidence and defiance.

21. Apart from the lack of convictions in the ensuing 40 years, there was really nothing to mitigate these offences.

22. The principles applicable to prosecution appeals are well established.  The Court should grant leave only in a “rare and exceptional case” when it is necessary to establish a matter of principle: Everett v R (1994) 181 CLR 295, 299-300. Mere inadequacy of the sentence, even manifest inadequacy, does not, of itself, justify the grant of leave. Careful and distinct consideration must be given to the question of the grant of leave: Malvaso v The Queen (1989) 168 CLR 227, 234-5.

23. 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

24. 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.

25. 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.

26. 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.