R v Horstmann - [2010] SASC 103

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HORSTMANN
[2010] SASC 103
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Kourakis)
16 April 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
Appeal against sentence - defendant and appellant pleaded guilty to two counts of indecent assault contrary to section 56 of the Criminal Law Consolidation Act 1935 (SA) - single sentence imposed pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) of four years and six months imprisonment reduced from five years on account of the defendant's pleas of guilty - that sentence ordered to be served cumulatively on term of imprisonment of five years imposed on 9 February 2009 - the offending the subject of that sentence was part of the same course of conduct as the offending the subject of this appeal - having regard to combined head sentence of nine years and six months, sentencing Judge extended defendant's non-parole period from three years to six years - whether Judge failed to have proper regard to sentence imposed on 9 February 2009 - whether sentence imposed having regard to total term of imprisonment faced by defendant was crushing in the circumstances - whether Judge erred in application of the principle of totality.
Held: appeal dismissed - sentencing Judge had appropriate regard to sentence imposed on 9 February 2009 and to the principle of totality - sentence imposed appropriate in the circumstances and well within the discretion of the sentencing Judge.
Criminal Law Consolidation Act 1935 (SA) s 56 and s 353(4); Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA); Criminal Law (Sentencing) Act 1988 (SA) s 10(4), referred to.
R v Jongewaard [2009] SASC 346; House v The King (1936) 55 CLR 499; Skinner v The King (1913) 16 CLR 336; R v Becker (2005) 91 SASR 498; Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; R v Place (2002) 81 SASR 395; R v B,RWK (2005) 91 SASR 200; R v McNamara [2009] SASC 227; Attorney-General (SA) v Tichy (1982) 30 SASR 84; Beattie v R (1993) 169 LSJS 266; R v Bibl (2004) 89 SASR 147; R v AJW (2001) 80 SASR 246; Millwood v Police [2003] SASC 259; Director of Public Prosecutions (SA) v O’Connor (1995) 65 SASR 250, considered.

R v HORSTMANN
[2010] SASC 103
Court of Criminal Appeal Gray, Vanstone and Kourakis JJ
GRAY J:

This is an appeal against sentence.
Background
The defendant and appellant, Denis Norman Horstmann, pleaded guilty in the District Court to two counts of indecent assault, contrary to section 56 of the Criminal Law Consolidation Act 1935 (SA). Those assaults were committed in 2003 against two brothers, W and H. The defendant lived near the grandparents of W and H and befriended the grandparents apparently in order to get close to their young grandchildren.
The first count concerned the indecent assault of W, who was 12 years old at the time of the offending. W was staying with his grandparents in Adelaide in order to have medical treatment. The defendant invited W to come to his house to shoot a slug gun. Once there, the defendant took W into his bedroom and rubbed cream on his face. The defendant then told W that he needed to check his back and proceeded to put his hand down the back of W’s pants and rub his buttocks and between his buttocks.
The second count of indecent assault was committed against H and was representative of a course of conduct over some 18 months, involving 14 separate incidents. H was about 8 years old at the time of the first of those incidents. Like his brother, he was staying with his grandparents and went to the defendant’s house where he had been invited to play with, or work on, motorcycles, cars and guns. The defendant had guns in his bedroom and was cleaning them with H when he suggested that H had a lot of pimples and that he would check to see whether H had any on his buttocks. The appellant pulled down H’s pants and underwear and knelt behind him. He then rubbed what he said was pimple cream in between H’s legs and near his groin. The defendant then rubbed cream on H’s buttocks and between his buttocks. He told H not to tell anyone about what had happened. This behaviour was repeated on a number of occasions and progressed to the appellant touching H’s penis and testicles.
The maximum penalty for the first count of indecent assault, where the victim was 12 years of age, was imprisonment for eight years. The maximum penalty for the second count, where the victim was under 12 years of age, was imprisonment for 10 years.[1]
[1] Criminal Law Consolidation Act 1935 (SA) section 56. This provision was substituted with a new section 56 in 2005 by the commencement of the Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA), which amended the applicable penalties.
The sentencing Judge imposed a single sentence pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), although noting that had he not done so, he would have made the sentences cumulative. The Judge fixed a term of imprisonment of four years and six months and indicated that but for the defendant’s guilty pleas, he would have fixed a head sentence of imprisonment of five years. That sentence was ordered to be served cumulatively on a sentence of fives years imprisonment imposed by Millsteed DCJ on 9 February 2009. Having regard to the total combined head sentence of nine years and six months, the Judge extended the defendant’s existing non-parole period from three years to six years.
The defendant has an extensive history of sexual abuse of children.
In 1994, the defendant pleaded guilty to four counts of indecent assault and five counts of unlawful sexual intercourse committed against two boys aged 10 and 12 years respectively, both of whom were the defendant’s nephews. Those offences were representative of a course of conduct over some four years between March 1990 and January 1994 and involved a gross breach of trust given the family relationship between the defendant and those boys. In relation to this offending, the defendant was sentenced to a term of seven years imprisonment and a non-parole period of four years and six months was fixed.
In 1999, six weeks after the defendant was released on parole, he was sentenced to imprisonment for three years in relation to three counts of indecent assault committed over a period of some four years between late 1986 and May 1990. These counts were representative of a course of conduct involving one victim, beginning when the boy was about 12 years old. For these offences the defendant was sentenced to three years imprisonment and a non-parole period of 18 months was fixed. However, because these offences pre-dated the 1994 offences, the sentencing Magistrate treated the defendant as a first-time offender and suspended the sentence of imprisonment on the defendant’s entry into a good behaviour bond of three years.
It is relevant to observe that between August 1999 and May 2001, the defendant undertook two periods of treatment at the Sexual Offenders Treatment and Assessment Program, involving 54 group sessions and 24 individual sessions.
As discussed above, on 9 February 2009, the defendant was sentenced to a term of five years imprisonment by Millsteed DCJ. That offending was committed in 2004 against another boy, a 16 year old cousin of W and H. The five counts of indecent assault committed against W and H’s cousin post-dated the offending against W and were concurrent with the offending against H. The circumstances of that offending were similar to the offending in the present proceeding in that the defendant befriended his victim through the boy’s grandparents, inviting him to visit his home, took him on outings and committed offences of indecent assault against him. As noted, the defendant was sentenced to the one sentence of five years imprisonment for the five counts of indecent assault. A non-parole period of three years was fixed.
In summary, the defendant has engaged in unlawful sexual conduct against children between late 1986 and January 1994. He was then imprisoned between November 1994 and April 1999, when he was released on parole. In June 1999, the defendant had a three-year bond of good behaviour imposed upon him. Between August 1999 and May 2001, the defendant participated in the Sexual Offenders Treatment and Assessment Program. Less than a year after the expiry of the bond, in May 2003, the defendant resumed his criminal behaviour, committing indecent assaults against W, H and their cousin. This conduct apparently ceased in December 2004. The defendant was arrested on 8 April 2007.
When sentencing, the District Court Judge concluded with the following remarks:
Your offending is a matter of great concern. It appears to be part of a pattern of behaviour whereby you have befriended adults who have the care of young boys and, having gained the trust of the guardians, socialise with the victims of your offending preparatory to indulging your prurient self-interest. Your offending constituted a significant breach of trust. Your victims and their family will suffer long-term consequences as a result of your behaviour.
The protection of young children from exploitation by sexual predators is a primary policy of the criminal law. It is necessary, in imposing sentence, to deter others who might be inclined to sexually exploit children. Further, given your history of offending, both personal deterrence and the protection of the community are important considerations when determining an appropriate sentence.
I will impose a single sentence pursuant to s.18A of the Criminal Law (Sentencing) Act. Had I not done so, I would have made the sentences cumulative. But for your plea of guilty, I would have fixed a head sentence of imprisonment for five years. I reduce that to four years and six months. As I have said, you are currently serving the sentence imposed by Judge Millsteed. The offending in that matter post-dated the offending in Counts 2 and 6 but it overlapped with the pattern of behaviour relevant to Count 6.
Pursuant to the Criminal Law (Sentencing) Act, the sentence I have imposed will be cumulative upon your current five year head sentence, making a total head sentence of nine years and six months. I am required to review and extend the non-parole period. Clearly, you will benefit from a lengthy period under supervision following your ultimate release from incarceration. I review the existing non-parole period and extend that to six years.
I have considered both the submissions of your counsel that I should sentence you in such a way as to reflect what Judge Millsteed would have done had these charges been before him, and the principle of totality. I do not consider that the sentence requires any alteration on either basis.
The Appeal
The Approach of the Appellate Court
This Court will only allow an appeal against sentence if it is satisfied that the criteria under section 353(4) of the Criminal Law Consolidation Act 1935 (SA) applies. That sub-section provides:
Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a) if it thinks that a different sentence should have been passed—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b) in any other case—dismiss the appeal.
In Jongewaard, Doyle CJ considered the application of this provision:[2]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
In the present case [counsel for the defendant] did not point to any specific error of fact or law by the Judge. His submission is that the result is unreasonable, and manifestly excessive, and in particular that the Judge should have suspended the sentence.
The latter argument will succeed only if this Court is persuaded that it was not open to the Judge to find that there was not “good reason” for suspending the sentence, in exercise of the power conferred by s 38(1) of the Sentencing Act.
[2] R v Jongewaard [2009] SASC 346 at [40]-[42] (Doyle CJ, with whom Layton & Kourakis JJ agreed).
When assessing whether an appeal against sentence should be allowed, identification of error is not sufficient.[3] Even where error has occurred in the sentencing process, the sentence will not be interfered with unless it can be said to be manifestly excessive,[4] or there has been a miscarriage of justice requiring intervention by the Court.[5]
[3]    House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt & McTiernan JJ).
[4]    Skinner v The King (1913) 16 CLR 336 at 340.
[5]    R v Becker (2005) 91 SASR 498 at [59]-[61], [68].
Manifestly Excessive
On the hearing of the appeal, the defendant complained that the penalty imposed was in all the circumstances manifestly excessive. It was contended that this had arisen as a consequence of errors on the part of the sentencing Judge. It was said that the sentencing Judge failed to have adequate regard to the sentence imposed by Millsteed DCJ on 9 February 2009. It was pointed out that the victim of that offending was a cousin of the victims of the present offending and that all offending was part of the one course of conduct. It was argued that the sentencing Judge should have addressed this factor when sentencing for the present offending through an application of the totality principle. It was claimed that the sentencing Judge, having arrived at a provisional sentence for the present offending, should have then looked at the total imprisonment to be faced by the defendant, including the balance of the sentence imposed by Millsteed DCJ, and then made a reduction to the provisional sentence in order to prevent the total term of imprisonment faced by the defendant from being crushing.
The principle of totality has been expressed by Thomas[6] as follows:
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is “just and appropriate”. The principle has been stated many times in various forms: “when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[”]; “when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”
[6] Thomas, Principles of Sentencing (1979, 2^nd ed) at 56-57.
The principle so expressed has been approved by the High Court in both Mill[7] and Postiglione.[8] In Postiglione, McHugh J described the principle of totality in the following terms:[9]
The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. In Kelly v The Queen O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi:
“There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.”
The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
[Footnotes omitted]
Also in Postiglione, Kirby J described the principle of totality as “in the nature of checks”[10] to be applied after reaching a conclusion as to the appropriate sentence having regard to the objective criminality and personal and other matters of mitigation. A sentencing judge must consider whether the sentence so arrived at needs further adjustment by reason of “parity” or “totality”.[11]
[7]    Mill v The Queen (1988) 166 CLR 59 at 63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).
[8]    Postiglionev The Queen (1997) 189 CLR 295 at 304, and in particular at 340 (Kirby J).
[9]    Postiglionev The Queen (1997) 189 CLR 295 at 307-309.
[10] Postiglionev The Queen (1997) 189 CLR 295 at 340.
[11] Postiglionev The Queen (1997) 189 CLR 295 at 340-341.
The proper application of the totality principle was reviewed by this Court in Place,[12] where in the course of a discussion of the authorities, the observations of the High Court in Postiglione were reinforced and the following observation was made:[13]
In an earlier judgment, King CJ spoke of the requirement that “at the end of day” a sentencing judge “stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose” (R v Creed (1985) 37 SASR 566 at 568). The view that the question of totality is the final step in the sentencing process was confirmed by Doyle CJ and Olsson J in R v Major (1998) 70 SASR 488 at 490 and 497.
[12] R v Place (2002) 81 SASR 395.
[13] R v Place (2002) 81 SASR 395 at 426 [87] (Doyle CJ, Prior, Lander and Martin JJ).
However, the totality principle is not a principle of sentencing that can be invoked as a matter of routine. In B,RWK Doyle CJ observed:[14]
In the course of submissions counsel for the appellant invoked the totality principle. There is no substance at all in that submission. The sentence in question cannot be regarded as a crushing sentence. That is often an indicator that a sentence should be reduced by applying the totality principle. The totality principle cannot be invoked, as there is a tendency to do, as a routine argument for a further reduction in what is otherwise an appropriate sentence. The totality principle is one that will apply in relatively infrequent circumstances.
[14] R v B,RWK (2005) 91 SASR 200 at [16].

In the extract from the sentencing Judge’s remarks set out above, it is evident that regard was had to the sentence imposed by Millsteed DCJ and to the principle of totality. These were not matters overlooked by the Judge. The question is whether they were given adequate weight. The ultimate question is whether the sentence imposed reflects the entirety of the criminal conduct.[15]
[15] R v McNamara [2009] SASC 227 at [33] (Vanstone J) applying Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 85.
It should be noted that no unfairness or prejudice was occasioned by the defendant in the way that the proceedings were dealt with by the Court. It is to be observed that the defendant could have had the opportunity of having all matters dealt with by the one Court and potentially at the one time. Following his plea in respect of the charges before Millsteed DCJ, he could have sought that those matters be stood over until the Court in the present proceedings was in a position to proceed to sentencing. In that event, the entire sentencing process would have been before the Court at the one time. Alternatively, the defendant could have sought the referral of the present proceedings to Millsteed DCJ so that the one Judge would have dealt with all matters. Counsel for the defendant accepted that both these courses were open to the defendant, but were not pursued. It is possible that the defendant saw an advantage in being sentenced by a different Judge in respect of the present offending. Accordingly, this is not a case where the defendant can complain that any unfairness arose in the way that proceedings were dealt with by the Court. Ultimately, his complaint is that it was necessary for the sentencing Judge to have proper regard to the sentence imposed by Millsteed DCJ when determining the sentence for the present offending.
Sentencing for Indecent Assault
For indecent assaults against children there should be a strong component of deterrence in the sentence imposed.[16] A substantial sentence of immediate imprisonment will generally be appropriate.[17] Multiple victims and a series of indecent assaults are factors of aggravation. The significance of multiple victims in the sentencing process for indecent assaults was highlighted in AJW, where Doyle CJ observed:[18]
I consider that the sentence imposed by the judge is manifestly inadequate, and that it reflects error. It fails to recognise adequately the number of children involved in the offending, as a separate aspect of the seriousness of the offending. It fails to adhere to an appropriate standard of punishment for such a substantial group of serious offences, over a period of time, and involving a number of children.
[16] Beattie v R (1993) 169 LSJS 266.
[17] R v Bibl (2004) 89 SASR 147.
[18] R v AJW (2001) 80 SASR 246 at [30], Prior & Nyland JJ agreeing. These remarks were adopted by Perry J in Millwood v Police [2003] SASC 259 at [28]-[30].
In O’Connor,[19] the question of suspension of a term of imprisonment was considered. The Director sought leave to appeal on the grounds that the suspended sentence of 18 months imprisonment imposed was manifestly inadequate. Perry J, with whom Cox and Williams JJ agreed, made the following comments in relation to suspension of imprisonment for offences against children:
Circumstances of aggravation in this case are constituted by the substantial disparity in ages, the gross breach of trust, the repetitive nature of the offences and that they were committed over a period of time. In my opinion, those factors gave rise to the need to have regard to general deterrence as the dominant consideration in imposing sentence.
Matters personal to the defendant such as his prior good record and his psychological condition could not outweigh the need for punishment "proportionate to the gravity of the crime, and for the deterrence of others": see R v Lewis (1993) 60 SASR 582 at 584.
In my view, the sentence of imprisonment was too short and its suspension not warranted. The sentence reflects a failure to give proper weight to the seriousness of the offending and the need for general deterrence.
[19] Director of Public Prosecutions (SA) v O’Connor (1995) 65 SASR 250 at 253.
It is instructive to note that the primacy of deterrence when sentencing for sexual offences was enshrined in legislation by the enactment of the Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA) which introduced the following provision into the Sentencing Act:[20]
A primary policy of the criminal law is to protect children from sexual predators by ensuring that, in any sentence for an offence involving sexual exploitation of a child, paramount consideration is given to the need for deterrence.
That subsection clearly enunciates the recognised need to protect children when sentencing for sexual offences against children.
[20] Criminal Law (Sentencing) Act 1988 (SA) section 10(4).
The defendant committed serious offences against two young boys. In particular, the offences committed against H commenced when he was only eight years old and involved repeated offending over the ensuing 18 months.
There are a number of factors which militated against the imposition of any lesser sentence than that imposed. They include the young age of the two victims, the fact that the defendant was in his fifties at the time of the offending, the predatory behaviour of the defendant, including his befriending of the grandparents of the two boys so that he could obtain access to them and the defendant’s abuse of a position of trust. These factors must also be considered against the background of the defendant’s history of offending against young boys, and the fact that the present offending occurred after he had the opportunity of completing a program designed to address his sexual offending. The defendant’s prospects for rehabilitation in these circumstances can be described as poor. A further consideration of importance is the immediate and long-term impact of the defendant’s offending on the two young boys.
In my view, the sentence imposed was appropriate in the circumstances and was reflective of the entirety of the criminal conduct. The sentence reflects both the legislative intent of Parliament and judicial comments on the need to protect children from predatory behaviour such as that of the defendant.[21] It was a sentence well within the discretion of the sentencing Judge.
[21] See eg Beattie v R (1993) 169 LSJS 266; R v Bibl (2004) 89 SASR 147.
Conclusion
I would dismiss the appeal.
VANSTONE J: The sentence under appeal is one of four and a half years imprisonment to be served cumulatively upon a five year sentence already being served by the appellant, with the non-parole period being extended from three to six years, for two counts of indecent assault committed in 2003. The victim of one count was 12 years of age at the time of the offending. The other victim was eight years old and the count in relation to him was representative of a course of conduct.
In my view the sentence imposed on the appellant was moderate. The appellant’s history of similar offending was a matter of grave aggravation. The common features of all the crimes were premeditation, ingratiation and breach of trust. It seems that the appellant learned little, if anything, from his 1994 prison sentence and the subsequent suspended sentence.
The appellant’s counsel could not point to any express error by the judge. He sought to invoke the totality principle and to argue that more emphasis should have been placed on the appellant’s prospects of rehabilitation, such as they are.
I consider that the arguments are without merit. The approach taken to the sentencing exercise was strictly orthodox and the cumulative sentence imposed and the extension of the non-parole period were well within the available range.
I agree that the appeal should be dismissed.
KOURAKIS J: On an appeal against sentence, the Court of Criminal Appeal has no power to set aside or vary that sentence unless it is satisfied that the sentence is affected by an error of the type identified in House v The King[22]: a failure to take into account relevant matters; having regard to irrelevant matters; or unreasonableness (manifest excess or inadequacy).[23] I shall refer to the first two errors as process errors and the last as an outcome error. Where either a process error or an outcome error has been made, the Court of Criminal Appeal may interfere.
[22] (1936) 55 CLR 499 at 504-5.
[23] It needs to be emphasised that a failure to give adequate weight to a relevant matter is not in itself an appellable error; only a failure to have regard to it at all is an error which justifies interference with the discretion. On an appeal against the exercise of the sentencing discretion, a failure to give adequate weight to a matter is only of any significance if it has resulted in an outcome error.
Plainly enough, in the case of an outcome error it is implicit in a finding of manifest excess or inadequacy that the Court of Criminal Appeal has formed the view that a different sentence should have been passed and it will vary the sentence accordingly.
In the case of a process error, the Court of Criminal Appeal may yet refrain from interfering with the sentence if it thinks that the resulting penalty was appropriate notwithstanding the demonstrated error. In such a case, the Court of Criminal Appeal will not vary the sentence if it thinks that the same or a higher sentence would be passed if it were to exercise the discretion itself. However, where a process error is demonstrated, the Court of Criminal Appeal may reduce the sentence if in the exercise of its own discretion it considers that a lesser sentence is appropriate, even though the sentence under appeal is not manifestly excessive.
For the reasons given by Gray J and Vanstone J, the appellant has failed to demonstrate either a process error or an outcome error. I would therefore dismiss the appeal.