R v Humble - [2009] SASC 378

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUMBLE
[2009] SASC 378
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice White)
9 December 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence - appellant convicted of two counts of unlawful sexual intercourse with a person under the age of 12 years - victim was aged 9 and 11 years at the time of the offences - appellant was in a relationship with the mother of the victim - offences were isolated incidents - appellant sentenced to four years imprisonment for each offence, to be served cumulatively, with a non-parole period of four years.
Whether appellant was sentenced on the basis that the offences were part of a course of conduct - whether sentence manifestly excessive.
Held: appeal dismissed - no error in Judge's approach to sentencing - sentences not manifestly excessive.
Criminal Law Consolidation Act 1935 (SA) s 49, s 56, s 58A; Criminal Law (Sentencing) Act 1988 (SA) s 9A, s 18A; Criminal Law Consolidation Act 1876 (SA) s 63, referred to.
R v Reiner (1974) 8 SASR 102; R v D (1997) 69 SASR 413; R v Taddeo (1993) 67 A Crim R 338; R v Godfrey (1993) 69 A Crim R 318; R v Major (1998) 70 SASR 488; Markarian v The Queen (2005) 228 CLR 357, considered.

R v HUMBLE
[2009] SASC 378
Court of Criminal Appeal: Doyle CJ, Duggan and White JJ

DOYLE CJ: I would dismiss the appeal against sentence. I agree with the reasons of White J for doing so.
DUGGAN J: I would dismiss the appeal for the reasons prepared by White J.
WHITE J: The appellant was convicted by a jury of two offences of unlawful sexual intercourse with a person under the age of 12 years.[1] The first offence occurred between 9 October 1988 and 31 January 1989 (the Henley Beach offence). The second occurred between 1 February 1990 and 7 October 1990 (the Klemzig offence). Each offence involved the same victim who was aged nine years at the time of the first, and eleven years at the time of the second, and was constituted by acts of cunnilingus.
[1] Contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
The trial Judge imposed a sentence of imprisonment of four years for each of these two offences, and ordered that they be served cumulatively. The Judge fixed a non-parole period of four years and did not consider that there was good reason to suspend the sentences.
The appellant now appeals by permission against those sentences.
The appellant had been tried before the jury on three counts of unlawful sexual intercourse, three counts of indecent assault,[2] and one count of inciting a child to commit an indecent act.[3] He was found guilty of the two offences of unlawful sexual intercourse which have been mentioned, not guilty of four of the offences, and the jury could not reach a verdict in respect of one count of indecent assault.
[2] Contrary to s 56 of the CLCA.
[3] Contrary to s 58A(1)(a) of the CLCA.
As well as giving evidence of the charged offences, the victim and her sister gave evidence at the trial of other uncharged similar conduct by the appellant commencing after the second incident of alleged unlawful sexual intercourse in January or February 1989 and continuing until some time in 1991.
The Court was informed that the Director of Public Prosecutions is to enter a nolle prosequi in relation to the charge of indecent assault upon which the jury could not reach a verdict.
An Alleged Sentencing Error
During the course of the sentencing submissions before the Judge, a question arose as to whether the appellant was to be sentenced on the basis that the two offences for which he was found guilty were committed during the course of the conduct comprising the uncharged acts or, alternatively, as entirely separate and isolated acts. Counsel for the Director contended for the former, while counsel for the appellant contended for the latter, submitting that in those circumstances suspension of any sentence of imprisonment imposed would be appropriate. The Judge decided to sentence on the basis that the acts of unlawful sexual intercourse for which the appellant was convicted were isolated events, saying:
The Crown submits that I should sentence you on the basis that the two offences of which you have been convicted were not isolated but rather took place against a background of a course of similar conduct. Your counsel submits that a finding by me that the uncharged offending is proven beyond reasonable doubt is inconsistent with the verdicts of acquittal.
It is my view that this issue is more illusory than real. I can only sentence you for the two offences of which you have been convicted. Finding that these offences occurred against a background of other uncharged acts reduces the scope for leniency but, ultimately, makes little difference to the sentence that I must impose. It may be unduly favourable to you, however I will proceed on the basis that the two counts of which you have been convicted were isolated events of unlawful sexual intercourse. [Emphasis added]
Later, the Judge said:
I am sentencing, as I have said, on the basis that these were two separate instances of offending. They were separated in time by a considerable period. They were both very serious and involved a young child. It was not, on the basis of what has been put to me, one course of conduct. I sentence you to four years imprisonment on each count, the second to be served cumulative upon the first. Accordingly, your sentence is eight years imprisonment.
Ms Fuller, for the appellant, focussed on the Judge’s statement that a finding that the offences occurred against a background of other uncharged acts would reduce the scope for leniency but, ultimately, would make little difference to the sentence which she had to impose. Ms Fuller submitted that this passage indicated that the Judge had imposed a sentence which was effectively the same as that which she would have imposed had the appellant’s offences been committed as part of an ongoing course of offending conduct. She submitted that this was a sentencing error warranting this Court’s intervention on the appeal.
Ms Fuller referred to the established principles as to the way in which account may be taken in sentencing of a proven course of uncharged conduct involving similar behaviour. They are that the uncharged conduct may not be used to increase the potential maximum punishment, but may preclude the leniency which may otherwise have been extended if the offences for which the offender is convicted were isolated offences.[4] That is because the offences of which an offender is found guilty may take their colour from, and their character be affected by, the context in which they were committed, and the other proved conduct may indicate that the offender cannot be regarded as having, at the time of the offending, an unblemished character.[5]
[4] R v Reiner (1974) 8 SASR 102 at 105; R v Godfrey (1993) 69 A Crim R 318 at 322-3; R v D (1997) 69 SASR 413 at 419.
[5] R v Taddeo (1993) 67 A Crim R 338 at 339; R v Godfrey (1993) 69 A Crim R 318 at 322-3.
In the present case, it was said that the Judge had erred in failing to recognise that the appellant may be entitled to leniency if the two offences were regarded as isolated, and not forming part of a course of conduct.
The passage in the Judge’s remarks upon which the appellant relies is somewhat awkwardly expressed. I agree that on one view it is capable of bearing the meaning for which the appellant contends.
However, I also consider that the passage is capable of being understood in another way. The Judge may have been intending to convey that even adopting an approach which was favourable to the appellant, he should still be required to serve an immediate custodial sentence, ie, foreshadowing her conclusion that, despite the submission made by the appellant’s counsel, the sentence of imprisonment which she was going to impose should not be suspended. On this view of the matter, the Judge should not be understood as expressing a view that the resolution of the competing submissions would not have an effect on the lengths of the terms of imprisonment which should be imposed or on her fixing of the non-parole period.
In my opinion, the Judge’s remarks are more naturally to be understood in this way. The Judge had correctly identified that a finding that the offences occurred against a background of other uncharged acts would reduce the scope of leniency, and stated her intention to sentence the appellant on a basis which was possibly unduly favourable to him. It is not readily to be supposed that the Judge would have then considered that adopting a view of the circumstances which was favourable to the appellant made no difference to the length of the sentences, or of the non-parole period which she should fix.
Ms Fuller acknowledged that the ambiguity in the Judge’s sentencing remarks meant that the fate of the appeal depended upon whether the total of the sentences imposed by the Judge could be regarded as manifestly excessive. Before addressing that issue, it is necessary to say a little more about the background to the appellant’s offending.
Background Circumstances
The appellant was born in late 1941. He was aged about 47 years at the time of the Henley Beach offence and about 48 years at the time of the Klemzig offence. He will soon have his 68^th birthday.
In about 1995 or 1996, the appellant formed a relationship with Ms D, the mother of his victim. That was shortly before Ms D separated from her husband who is the father of the victim, her older brother and her younger sister. The appellant and Ms D did not cohabit, but the appellant would often stay overnight at Ms D’s home at Klemzig.
It seems to have been common ground that Ms D and the appellant would consume large amounts of alcohol together and that Ms D was often significantly affected by alcohol when the appellant was present in her home.
In the late afternoon of one day in late 1988 or early 1989, Ms D, the appellant and the three children went to the beach at Henley Beach. Because the victim’s bathers had been left at home, she wore a pair of her mother’s which were too big for her. While Ms D and her son were on the jetty doing some fishing, the victim and her sister played with the appellant on the beach. They covered him with sand. At one stage while they were doing this, he had an erection. The appellant encouraged the girls, saying “make it bigger”, thereby inducing them to pat more sand in and around his genitals.
Later, when it became dark, the victim’s sister joined her mother and brother on the jetty, leaving the appellant and the victim on the beach. The appellant asked the victim if she would like a piggyback ride. He suggested, however, an unusual position for such a ride, with the victim sitting astride his shoulders but facing backwards so that her crotch was close to his face. While carrying her towards the sea, the appellant used his face to move her loose bathers to one side, and then licked her vagina. Later he put his tongue into her vagina. This was the act of cunnilingus which comprised the Henley Beach offence.
The Klemzig offence was the fifth of the seven counts for which the appellant stood trial. It occurred at Ms D’s home at Klemzig. The victim and her younger sister shared a bedroom in that home. The sister slept on the top of a bunk bed and the victim slept on the bottom. The victim’s evidence was that the appellant came into her bedroom one night after she and her sister had gone to bed. She said that he pulled her bed blankets down and put his head in between her legs, licking her vagina for several minutes. He was in a position such that the bottom half of his body was close to her face. This was the act of cunnilingus which constituted the second offence of which the appellant was found guilty. Towards the end of the incident the victim felt wetness on her right cheek. From her description it seems that the appellant masturbated himself while engaged in the act of cunnilingus.
The victim also alleged that on several occasions during 1989 before the commission of the Klemzig offence, the appellant came into the bedroom at night and would put his hand under the bedcovers and touch her vaginal area, sometimes putting his finger inside her vagina and sometimes licking her vagina. The circumstances described in these allegations constituted some of the uncharged conduct referred to by the victim and her sister in their evidence. As already noted, the Judge did not sentence the appellant on the basis that this unchanged conduct had been proved.
The Judge regarded the appellant’s conduct in each offence as opportunistic, as he had taken advantage of the lack of supervision of the victim by Ms D.
Since his convictions, the appellant has continued to maintain his innocence. He has made no statements of remorse, regret or contrition.
In her Victim Impact Statement, the victim described the pervasive effects of the appellant’s conduct on her psychological well-being. Those effects have included feelings of shame, self-loathing, worthlessness and emotional detachment from her own husband. The victim has a number of psychological symptoms for which she has sought and received extensive treatment.
The Appellant’s Circumstances
The appellant was employed in the fire brigade for 24 years concluding in 1996.
The sentencing Judge received two character references concerning the appellant which spoke highly of his honesty, compassion and strong family loyalty. Both witnesses considered the appellant’s conduct to be out of character. The Judge accepted that the appellant’s antecedents were relatively limited and minor.
Dr Raeside, the forensic psychiatrist, examined the appellant on 13 October 2008 in relation to his sentencing. He considered that the appellant had suffered an atypical grief reaction, probably a major depressive order, following the death of his son in 1993. However, that was after the appellant had committed the offences. Dr Raeside did not think that any psychiatric disorder had contributed to the appellant’s offending. He concluded that the appellant was probably suffering, in the context of the criminal proceedings, from an anxiety disorder with mixed anxiety and depressed mood. He considered that that condition may be exacerbated by the appellant’s incarceration.
The Judge referred to a number of factors which were favourable to the appellant: the absence of any relevant prior or subsequent offending; his excellent work history; his age; the long period of time which elapsed between the offending and the commencement of the prosecution; the appellant’s mental condition; and the likely effects of incarceration upon his mental state, as well as Dr Raeside’s opinion that there was no indication that a diagnosis of paedophilia or other sexual disorder was appropriate.
Two Sentences of Four Years Imprisonment
Many of the submissions on appeal proceeded on an assumption that the Judge had imposed a single sentence of eight years imprisonment with a non‑parole period of four years. However, this is not a correct understanding of the Judge’s sentences. As can be seen from the passages in the Judge’s sentencing remarks quoted earlier, the Judge sentenced the appellant to four years imprisonment on each of the two counts, and ordered that the second sentence be served cumulatively on the first. That gave a total of eight years imprisonment to be served, but it was not a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA). The two sentences of four years were not notional sentences, expressed by the Judge in that way in order to provide an explanation in accordance with R v Major[6] of how a single sentence was reached.
[6] (1998) 70 SASR 488 at 490.
When discussing counsel’s submissions concerning suspension, the Judge did refer to the period of eight years in prison which the appellant must serve as though it was a single sentence, but this cannot alter the fact that the Judge had imposed two cumulative sentences.
In this respect, I note that neither the endorsement on the Information signed by the Judge’s Associate, nor the Report of Prisoner Tried signed by the Judge, record accurately the sentences imposed by the Judge. Each indicates that a head sentence of eight years imprisonment, with a non‑parole period of four years, was imposed. The Report of Prisoner Tried also records inaccurately that one penalty was imposed for both counts.
It is particularly important, especially when an offender is committed to custody, that both the endorsement on the Information and the Report of Prisoner Tried should record accurately the actual sentence or sentences imposed. Amongst other things, this is necessary so that the precise basis upon which an offender is to be held in custody is known, particularly by the offender, by those responsible for the offender’s detention, and by the Parole Board. It is also important that any court which is required to sentence an offender for a later offence should know with certainty the sentence or sentences which have been previously imposed.
Consideration of Submissions
The two offences committed by the appellant, although isolated and separated from each other by a considerable period, had to be considered seriously. That is how the community regards them. The maximum penalty for each offence is life imprisonment. That has been the maximum penalty since at least 1876.[7]
[7] Criminal Law Consolidation Act 1876 (SA) s 63.
This Court has repeatedly said that penalties for the offence of unlawful sexual intercourse with a child under the age of 12 years must reflect the community’s denunciation of the conduct, including its outrage and revulsion. The appellant’s conduct is aggravated by the serious breaches of trust involved. He was able to commit the offences only because he had been entrusted by Ms D with the care of the victim at Henley Beach, and because he was trusted as a guest in Ms D’s home at Klemzig. Conduct of the kind committed by the appellant is capable of producing profound enduring effects on its victims, as has occurred in the present case. They are offences for which general deterrence is a particularly important consideration. The courts must do what they can to protect children from conduct of the present kind.[8]
[8] See R v D (1997) 69 SASR 413 at 423 (Doyle CJ).
Ms Fuller contrasted the appellant’s offending with the starting point of imprisonment for 12 years suggested in R v D[9] by Doyle CJ for multiple offences of the present kind. As the appellant was to be sentenced for only two separate offences which were not to be understood as having been committed as part of a course of conduct, the overall starting point should, she submitted, have been well less than 12 years. As already pointed out, this submission tended to overlook that the Judge had imposed two cumulative sentences, each of four years, rather than selecting a starting point of eight years imprisonment.
[9] Ibid at 424.
The appellant did not contend that a sentence of four years imprisonment, considered by itself, was inappropriate for either offence. Nor did the appellant contend that the two sentences should not have been made wholly cumulative, or that in some way the totality principle should have been invoked so as to reduce the total period to be served in prison. It is difficult to see that any submission to that effect could have succeeded.

The sentences imposed by the Judge in this case were severe. However, for the reasons already given, severe sentences are appropriate for offences of the present kind. It is an unfortunate fact that offences of unlawful sexual intercourse and indecent assault against children are often committed by persons who are otherwise of seemingly good character. It is that seeming good character which enables them to be in the positions of trust in which their offending occurs. It is also a common feature of offences of the present kind that they can go unreported for many years so that the offender’s family, friends and colleagues are unaware of their conduct. These considerations reduce the weight which could otherwise be given to the character references relating to the appellant.
It could be said that it may have been appropriate for the Judge to have imposed different sentences for the two offences. The Henley Beach offence appears to have been quite opportunistic with the appellant taking advantage of the opportunity presented by the looseness of the victim’s bathers and the fact that she had been left to play with him alone on the beach. The Klemzig offence, on the other hand, was committed after the appellant had had a long period in which to reflect upon the wrongfulness of his conduct in the Henley Beach offence, appears to have involved conduct of a more planned kind, and amounted to a degree of persistence in criminal conduct. In this way, the appellant’s culpability in the Klemzig offence was greater.
However, even if the sentence for the Henley Beach offence could properly have been lower than that for the Klemzig offence, it does not follow that a sentence of four years imprisonment for the Henley Beach offence was inappropriate. It could equally be said that the sentence for the Klemzig offence should have been higher.
The circumstances in which this Court interferes with the discretionary judgment involved in a sentencing decision are limited. The Court must be satisfied that the sentencing Judge has made an error of principle, or has had regard to an irrelevant consideration, or has failed to have regard to a relevant matter. If errors of this kind cannot be shown, the Court may still intervene if satisfied that the sentence is unreasonable or plainly unjust.[10]
[10] Markarian v The Queen [2005] HCA 25 at [25]; (2005) 228 CLR 357 at 370-1.
There were a number of features of the case which were favourable to the appellant. They have been mentioned earlier. The Judge made express reference to these features so that it cannot be said that she overlooked them.
When regard is had to the gravity of the appellant’s offending, I do not consider that it can be said that the imposition of two cumulative sentences, each of four years imprisonment, was manifestly excessive in the sense of being unreasonable or plainly unjust. The total period of eight years imprisonment was well less than the starting point of 12 years suggested in R v D. The nature of the appellant’s offending called for the imposition of severe sentences.
Conclusion
For the reasons given above, I would dismiss the appeal. I would also direct that the District Court, in the exercise of its power under s 9A of the CLSA, amend the endorsement on the Information, and the endorsement on the Report of Prisoner Tried so that they reflect accurately the sentences which were imposed by the Judge.