R v J, SM

[2015] SASCFC 185

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Permission to Appeal)

R v J, SM

[2015] SASCFC 185

Reasons of The Court of Criminal Appeal (ex tempore)

(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Nicholson)

8 December 2015

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - ABANDONMENT OF APPEAL

The applicant renewed before the Court of Criminal Appeal an application for permission to appeal against sentence following the refusal of permission by a single Judge.  The single ground relied on was that the head sentence and the non-parole period imposed is manifestly excessive.  At the first hearing before the Court of Criminal Appeal, the applicant abandoned the application for permission and it was dismissed by consent.  The applicant then applied to reopen his application for permission to appeal.

Held by the Court:

1.  The ground of appeal relied on (manifest excess) is not reasonably arguable.

2.  The dismissal of the application for permission to appeal would not give rise to the risk of a miscarriage of justice.

3.  Application to reopen the application for permission to appeal refused.

Criminal Law Consolidation Act 1935 s 49, s 58; Criminal Law (Sentencing) Act 1988 s 29D, referred to.
R v McRae [2013] SASCFC 89; R v Baltensperger [2006] SASC 246; Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357; R v Tran & Tran [2011] SASCFC 153; R v MacBeth [2008] SASC 71; R v D [1997] SASC 6350, (1997) 69 SASR 413; House v The King [1936] HCA 40, (1936) 55 CLR 499, considered.

R v J, SM
[2015] SASCFC 185

Court of Criminal Appeal:   Sulan, Peek and Nicholson JJ

THE COURT

1. The applicant was convicted on 8 April 2015, following a trial by jury in the District Court, of one count of inciting a person under the age of 16 to commit an act of gross indecency[1] and two counts of unlawful sexual intercourse.[2]  The applicant is the father of the victim who was 14 at the time the offending commenced.  The two unlawful sexual intercourse offences involved digital penetration of the vagina and the gross indecency offence involved the applicant forcing the victim to remove her clothes and to stand naked in front of him.  The gross indecency offence was to be assessed against a course of similar conduct extending over a number of months from when the offending started in 2004 and the digital penetration offences were to be assessed against a deliberate and sustained course of similar conduct extending over a one to two year period.  The offending was committed against a background of intimidation and violence on the part of the applicant towards the victim. 

   [1] Contrary to section 58(1) of the Criminal Law Consolidation Act 1935.

   [2] Contrary to section 49(3) of the Criminal Law Consolidation Act 1935.

2. On 22 July 2015, the applicant was sentenced to imprisonment for nine years and one month with a non-parole period of four years and one month, reduced from ten years and five years, respectively, for all due allowances.  The sentence was not suspended but backdated to commence 10 April 2015, being the date that the applicant was taken into custody. 

3. The applicant renewed before this Court an application for permission to appeal dated 23 July 2015 which had been refused by a single Judge of this Court on 12 October 2015.  The applicant was represented by counsel before the single Judge but conducted the application before this Court unrepresented.  In order to obtain permission to appeal, the applicant was required to satisfy the Court that any ground of appeal relied upon is reasonably arguable. 

4. The application came before the Court of Criminal Appeal[3] on 16 November 2015.  Shortly prior to the hearing the applicant provided a notice of discontinuance and, at the hearing, confirmed that he wished to discontinue.  The Court made an order refusing, by consent, the application for permission to appeal against sentence.

   [3]    Sulan, Peek and Nicholson JJ.

5. However, by letter dated 17 November 2015, the applicant applied to re-open the application for permission.  The Court will permit the withdrawal of a notice of abandonment of an appeal only in very limited circumstances.[4]

   [4]    See the discussion of this issue in the context of a conviction appeal by Peek J (with whose reasons Stanley and Nicholson JJ agreed) in R v McRae [2013] SASCFC 89.

6. The Court reconvened on 8 December 2015.  It determined to assume in the first instance, without deciding, that it had power to re-open and hear the application, notwithstanding its dismissal.  However, on any view of the test to be applied, when considering whether or not to exercise a power to re-open, the merits of the substantive application fall to be considered.  As such, the Court considered that it would be appropriate, in the first instance, to hear from the parties on the merits of the proposed appeal.  Only if there was shown to be the risk of a miscarriage of justice would it be necessary to attend to other matters bearing on the question of whether the applicant should be permitted to reopen his application for permission to appeal.

7. The only ground relied upon by the applicant is that the head sentence and non-parole period is manifestly excessive. 

8. In support of this ground of appeal, the applicant has drawn the Court’s attention to the fact that, at an earlier trial, he had been convicted of the same offences together with an additional count of unlawful sexual intercourse which involved penile-vaginal penetration and a count of incest which also involved penile-vaginal penetration.  Those convictions were set aside on appeal and following the re-trial he was convicted only of the three offences as identified and explained above. 

9. Following the first trial the applicant was sentenced to imprisonment for 12 years with a non-parole period of six years.  As it happens, the Judge that dealt with the applicant (both as to trial and sentence) on the first occasion was also the Judge that dealt with the applicant on the second occasion. 

10. The applicant contended that the first head sentence was manifestly excessive, that this error was further perpetrated in the fixing of the second head sentence and that the problem was exacerbated because the Judge failed when sentencing the second time to pay sufficient regard to the fact that the two additional offences involving penile-vaginal penetration had not been established at the second trial.  Nevertheless, in this latter respect, the Judge clearly and correctly identified the basis upon which he was to impose sentence, on the second occasion, in the following terms.

    Accordingly, I will sentence you on the basis that you engaged in a course of sexual conduct against your daughter as represented by counts 1-3, beginning with a short course of acts of gross indecency and the digital penetration extending over a period of one to two years with a gap of a few months when you moved.  By reason of the jury’s verdicts on counts 4 and 5, I put out of my mind the allegations of vaginal sexual intercourse.

11. We are strongly inclined to the view that the first sentence was not manifestly excessive.  Nevertheless, it is unnecessary to form a concluded view about this.  The first sentence is not material to the sentencing exercise undertaken by the Judge following the second trial other than as, perhaps, identifying an upper limit which should not be exceeded by any subsequent sentence.[5] 

    [5]    R v Baltensperger [2006] SASC 246.

12. The sentencing exercise under consideration was to be attended to by the Judge afresh based on the second trial evidence and jury verdicts and the other sentencing materials placed before the Judge on the second sentencing occasion.  The Judge was not entitled to have regard to the evidence in, and jury verdicts obtained following, the first trial.  There is no reason to doubt that this was the approach adopted by the Judge.  It follows that no assistance is to be had by comparing the first head sentence with the second head sentence and enquiring whether a sufficient reduction was allowed following the removal of the two additional offences involving penile-vaginal sexual intercourse. 

13. The real question before the Court is whether or not the sentence imposed on the second occasion is to be seen as manifestly excessive.  In this respect, the question to be asked is whether, upon the facts, the sentence imposed was unreasonable or plainly unjust.[6]  An important consideration here is the maximum penalties available for each offence.[7]  The maximum penalty for the gross indecency offence is imprisonment for three years[8] and the maximum penalty for each of the counts of unlawful sexual intercourse was, at the time they were committed, imprisonment for seven years.[9] 

    [6]    Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

    [7]    Markarian at [31].

    [8] Section 58(1) Criminal Law Consolidation Act.

    [9] Now ten years, section 49(3) of the Criminal Law Consolidation Act.

14. Also of particular significance to the formulation of sentence were the gross breach of the trust involved between a father and a daughter and the established course of conduct.  The applicant is not to be punished for this uncharged criminal conduct.  However, the fact that the offending was not isolated but illustrative of a sustained course of similar serious sexual misconduct over such a lengthy period, serves to increase the applicant’s moral culpability for each individual offence and to reduce substantially, if not entirely, any scope for leniency to which the applicant may otherwise have been entitled.[10]  The applicant had time and opportunity to reflect on his conduct but chose to continue.

    [10]   R v Tran & Tran [2011] SASCFC 153, R v MacBeth [2008] SASC 71.

15. Importantly, the nature of the offending, the circumstances surrounding the offending, the fact that the offending was representative of an extended course of conduct, the applicant’s lack of remorse and contrition, the impact of the offending and the need for both personal and general deterrence as, in each respect, demonstrated by the materials before the Judge, place this sentencing exercise well within the guidance provided by the Court of Criminal Appeal in R v D.[11] There is nothing in the applicant’s personal circumstances, including his antecedent criminal record,[12] to suggest that the guidance in R v D ought to be departed from in this case.

    [11] [1997] SASC 6350; (1997) 69 SASR 413 and see section 29D of the Criminal Law (Sentencing) Act 1988.

    [12]   The applicant has an extensive and serious prior criminal record, although not involving any prior sexual offending.

16. Any appeal, should permission be granted, would be governed by the principles articulated by the High Court in House v The King.[13]  The applicant has not identified any error of process committed by the Judge when formulating the sentence.  Further, there has been no outcome error.  Having reviewed the materials before the sentencing Judge, we are of the view that the starting points of ten years imprisonment for the head sentence and the, relatively moderate, five years for the non-parole period were within the range available to the Judge. 

    [13] [1936] HCA 40; (1936) 55 CLR 499.

17. The ground that the sentence is manifestly excessive has no prospect of succeeding and cannot be said to be reasonably arguable.  There is no risk that there has been a miscarriage of justice.  The application to re-open the application for permission to appeal is refused.