R v HOW - [2009] SASC 236

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application)
R v HOW
[2009] SASC 236
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice David and The Honourable Justice Kelly)
11 August 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
Application by the Director of Public Prosecutions for permission to appeal against a sentence - respondent convicted after trial by jury of two counts of unlawful sexual intercourse and one count of indecent assault with a person under the age of seventeen - respondent sentenced to three years and six months imprisonment with a non-parole period of twenty months. Permission sought on ground that sentence is manifestly inadequate and fails to maintain an adequate standard of punishment for sexual offences upon children.
Held: permission to appeal granted - appeal allowed - sentence outside an acceptable range of punishment so as to undermine public confidence in the criminal justice system - District Court sentence set aside - head sentence of six years imposed with non-parole period of two years and nine months.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Nemer (2003) 87 SASR 168; R v D (1997) 69 SASR 413; R v Osenkowski (1982) 30 SASR 212, applied.

R v HOW
[2009] SASC 236
Court of Criminal Appeal: Doyle CJ, David and Kelly JJ

DOYLE CJ: I would grant permission to appeal and allow the appeal. I agree with the orders proposed by Kelly J, and with her reasons. There is nothing that I wish to add.
DAVID J: For the reasons given by Kelly J, I would allow the appeal. I agree with the orders she proposes.
KELLY J:
Introduction
This is an application by the Director of Public Prosecutions for permission to appeal against a sentence imposed in the District Court on 19 May 2009.
The respondent was convicted after a trial by jury of two counts of unlawful sexual intercourse and one count of indecent assault with a person under the age of seventeen. The maximum penalty for each offence of unlawful sexual intercourse at the relevant time was seven years imprisonment. For the offence of indecent assault the maximum penalty is eight years. The judge sentenced him to a term of imprisonment of three years and six months and fixed a non-parole period of twenty months.
The Director of Public Prosecutions applies for permission to appeal the sentence on the basis that it is manifestly inadequate and that it fails to maintain and reflect appropriate standards of punishment, in particular in relation to sexual offences against children. On appeal counsel for the Director contended that the learned sentencing judge failed to give sufficient weight to the seriousness of the offending, failed to have any, or any sufficient regard to the fact that the offending occurred against a background of a course of conduct involving the victim, a boy named “C” (hereafter referred to as C) and that he failed to give sufficient weight to the personal circumstances of C.
Background
During the period when the offences occurred between 2004 and 2006 the respondent was aged between forty three and forty five years. C was aged between fourteen and sixteen years. The respondent first met C when he introduced himself to C outside a shop in Elizabeth. As a result of that meeting the respondent later employed C in his landscaping business.
C suffered from a disability namely autism, and from an intellectual disability. The disabilities manifested in an inability on C’s part to socialise properly, he had limited communication skills and obsessive behaviours. In C’s case his obsession appears to have been with trucks and cars. C had no real outside contacts apart from his immediate family.
In the course of his employment by the respondent, C was involved in the care of the respondent’s horse. The first count of unlawful sexual intercourse involved an act of anal sexual intercourse with C in the stables at which the respondent kept his horse. Some time after that date, C moved in with the respondent and his wife and family and lived with them at their home for some time. A sexual relationship between the respondent and C continued for some time.
The second count of unlawful sexual intercourse and the offence of indecent assault occurred at C’s mother’s house after C had moved back to her home. The defence of the respondent at trial was a blanket denial of any improper conduct in relation to C. There was evidence at the trial from the mother and sister of C who both observed the respondent naked lying on top of C in C’s bedroom on the same occasion as the last two offences of unlawful sexual intercourse and indecent assault were committed.
The circumstances surrounding the respondent’s offending against C were serious. There was a gross disparity in age between the respondent and C. C was a vulnerable young person who suffered from a mental disability. Although it was accepted by the sentencing judge that the respondent may not have appreciated the full extent of C’s disabilities, the respondent was plainly aware that C had some problems and was attending a special school. At one stage during the course of the respondent’s relationship with C, during the period after C moved in with the respondent and his family, the respondent assumed a role of de facto carer in relation to C which even extended to acknowledging school reports on C’s behalf. Although it was not suggested that any of the offences in respect of which the respondent was convicted actually occurred during a time when the respondent was acting as a carer for C, the sentencing judge accepted that the offending occurred against the background that regular sexual incidents had taken place between the respondent and C during the course of their relationship between 2004 and 2006.
The offending appears to have ceased as a result of C’s mother and sister witnessing something of the last two offences committed. It was on that occasion that the police were called and the respondent was subsequently charged.
Issues on Appeal
On appeal counsel for the Director contended that the learned sentencing judge failed to give sufficient weight to the seriousness of the respondent’s offending and that he failed to have any, or any sufficient regard, to the fact that the offending occurred against a background of a course of conduct involving C. The particular features of aggravation which the appellant contended were not accorded sufficient weight by the sentencing judge, were the persistent and gross breach of trust by the respondent, the gross disparity in ages between the respondent and C, the ongoing nature of the conduct, the profound effect that the offending had on C and his family and the fact that C’s vulnerability was exacerbated by his mental disability.
The Sentence
In the course of his sentencing remarks the judge acknowledged that C suffered from autism of a moderate to severe kind and that he also suffered from an intellectual disability. He accepted that whilst the respondent was aware that C had some difficulties, nevertheless C presented to the respondent in a relatively normal way and did not appear to be significantly handicapped.
His Honour sentenced the respondent on the basis that the three offences in respect of which the respondent was convicted, were not isolated and there was regular sexual contact between the respondent and C over the period between 2004 and May 2006. After referring to the period of time when the respondent became the carer of C during the period that C lived with the respondent and his family, the sentencing judge then referred in some detail, to the personal circumstances of the respondent. Before concluding that a sentence of three years and six months imprisonment was appropriate, the sentencing judge said:
I have considered everything that has been put by counsel and I have had regard to the jury verdict and the matters that came before it. Your offending was indeed serious, having regard not merely to the age of the victim, but his disabilities. Whilst you may not have appreciated the full extent of them, you were aware that he had some problems and was attending a special school. You first established an employment relationship with him, and it appears that that became a friendship such that you spent considerable time together outside of work hours. There were numerous telephone and text communications between you.
Whilst I have considered the case of D, I am mindful of the fact that the charge under consideration there was of a considerably more serious nature, and one that attracted a penalty of life imprisonment. Even so, I am mindful of the fact that the court pointed to the very serious nature of offending of this general kind. It also noted, as is the case here, that so often it is committed by persons of otherwise good character.
Counsel for the Director contended that the comments of the sentencing judge with regard to R v D (1997) 69 SASR 413 are indicative of the judge’s failure to appreciate the gravity of the offending.
Discussion
The principles which apply on an application by the Director of Public Prosecutions for permission to appeal are well known. Permission will only be granted if it is necessary to enable the court to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime so as to shock the public conscience: R v Osenkowski (1982) 30 SASR 212 at 213; R v Nemer (2003) 87 SASR 168 at 172.
The issue which arises on this appeal is not whether the sentence imposed here is merely lenient but whether it is outside the acceptable range of punishment such as to undermine public confidence in the criminal justice system.
I do not consider the sentencing judge’s comment about the case of D is indicative of any error, however it does appear from the sentencing remarks as a whole, that he did not give sufficient weight to the aggravating features of the offending. Unlike the circumstances in D, there were no genuine mitigating circumstances present in this case which might explain the unusually lenient sentence imposed. In fact to the contrary there are several aspects of the respondent’s offending which amount to significant matters of aggravation. They include the fact that the offending constituted a breach of trust by virtue of the respondent’s relationship of employer and at times carer of C during the relevant period, the gross disparity in ages between them, the ongoing nature of the sexual relationship for a period of some eighteen months and the profound effect which the offending had on C and his family.
In the light of these circumstances and the fact that there was no discount available for any early plea, it is difficult to understand what led the sentencing judge to adopt a starting point of three years and six months.
As Doyle CJ pointed out in D the paramount consideration in sentencing for offences of this nature must be both personal and general deterrence. The penalties which are imposed must reflect the feelings of outrage and revulsion in the community. This Court must do what it can to protect children from sexual interference by adults, that is to say, this Court must maintain and insist upon an adequate standard of punishment for such offending.
In my respectful view, if this Court allowed the sentence of three years and six months to stand, it would have the tendency to erode the appropriate standard of sentencing in cases where leniency might properly be extended. As I have already mentioned this was not such a case.
It is for these reasons I have concluded that permission to appeal should be granted in this case and the appeal should be allowed.
I consider that the starting point for fixing the respondent’s head sentence should have been seven years. I would therefore grant permission to the Director to appeal. I would allow the appeal and set aside the sentence imposed by the District Court Judge. Bearing in mind that this is a prosecution appeal I would impose as one sentence under the provisions of s 18A of the Criminal Law (Sentencing) Act 1988 a head sentence of six years. Having regard to the same considerations I would fix a non-parole period of two years and nine months.