R v Kench - [2005] SASC 85

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KENCH
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice Vanstone)
15 March 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
The appellant was convicted of five counts of unlawful sexual intercourse and two counts of indecent assault by a jury in the District Court - in sentencing the Judge imposed a head sentence of 10 years' imprisonment with a 6 year non parole period - the appellant appeals against sentence - discussion of the applicable standards to be applied in sentencing - whether the sentencing standards devised in R v D apply to offences committed before that judgment - whether the individual offences when taken together amount to a course of conduct - whether the sentences should be imposed cumulatively - discussion of totality principle - whether totality principle applies - appeal allowed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v D (1997) 69 SASR 413, discussed.
Postiglione v The Queen (1997) 189 CLR 295; DPP v O'Connor (1995) 65 SASR 250; O'Connell v The Queen (unreported, 19 June 1995, judgment no. S5123); R v Krawtschenko (unreported, 22 November 1996, judgment no. S5836); R v Benier (unreported, 13 March 1997, judgment no. S6077); R v Liddy (No 2) (2002) 84 SASR 231; R v P (2003) 87 SASR 287; R v Major (1998) 70 SASR 488; R v Place (2002) 81 SASR 395, considered.

R v KENCH
[2005] SASC 85
Court of Criminal Appeal: Doyle CJ, Besanko and Vanstone JJ

DOYLE CJ: This is an appeal against a sentence imposed by the District Court. A Judge of this Court granted leave to appeal.
The offences and the sentence
The appellant was found guilty by a jury of five counts of unlawful sexual intercourse and two counts of indecent assault upon a boy.
The offences were committed on two occasions. One count of indecent assault and four counts of unlawful sexual intercourse were committed at the appellant’s home in a northern country town between December 1991 and April 1992. The other count of indecent assault and the remaining count of unlawful sexual intercourse were committed at a different northern town, where the victim lived, in 1993.
He was 13 years old at the time of the first group of offences, and about 15 years old at the time of the second group.
The maximum penalty for each count of unlawful sexual intercourse is seven years’ imprisonment. The maximum penalty for each indecent assault is imprisonment for eight years.
The appellant was about 35 years of age on the first occasion, and about 38 years of age when sentenced.
The appellant was an adult scout leader. The victim was a boy scout. The appellant was trusted by the victim’s parents because of the position that he occupied. Contact between the appellant and the victim began, I gather, through the scout movement. It led to the appellant offering the boy part-time employment at his shop. It is likely that the appellant used this contact to gain the confidence of the boy. On two scout camps, involving small numbers of boys, the appellant showed the boy in question and some of his friends pornographic material, and in other respects engaged in conduct that appears to have been preparatory to what later occurred, although in itself it may not have involved any offending.
The first group of offences occurred in about January 1992 at the appellant’s home. It is not necessary to go into the circumstances. It suffices to say that the appellant persuaded the boy to submit to him. The indecent assault involved masturbation, and the unlawful sexual intercourse involved fellatio and digital penetration of the boy’s anus. The appellant told the boy not to tell anyone. Not long after the appellant left the town in which he lived.
About 18 months later the appellant one day drove past the boy’s home. He stopped and engaged the boy in conversation. The boy’s parents were not home, as the appellant probably realised. The appellant persuaded the boy to go into a shed, and there masturbated him and fellated him.
A Victim Impact Statement completed by the boy discloses the serious effects this conduct has had on the boy and his family. Not surprisingly the conduct itself, and the secret that the boy was harbouring, had adverse effects on his behaviour and feelings. He describes continuing feelings of self loathing. He is now married, but his reaction to the offending conduct has put significant strains on the marriage. He says that he still has nightmares, and is ashamed because of what happened.
His parents describe their feelings of deep betrayal because of the trust that they placed in the appellant. They describe the significant adverse change in their son’s behaviour at about the time of the offending. They have clearly suffered much grief. Their health has suffered. As they say, the appellant’s conduct has “damaged and changed” the boy and his family.
The appellant denies the offences.
The appellant’s childhood and general background are unremarkable, apart from his offending conduct.
In 1997 he was convicted in the Magistrates Court on 10 counts of indecent assault, the offences occurring in 1995 and 1996. The victim was again a boy aged 13, who was also a boy scout. For these offences the appellant was sentenced to imprisonment, on appeal, for two years and eleven months, with a non-parole period of 16 months.
In due course the appellant was released on parole. He was returned to prison after some time by the Parole Board.
The sentencing Judge had a report from Mr Fugler, a clinical forensic psychologist. It is troubling that Mr Fugler reports that the appellant denied that the 1995 offences were harmful to the boy involved. This indicates a failure to understand the potential impact of such conduct on the victim. The appellant is not to be punished again for these later offences or for his attitude to them, but in the light of what he said it is unsurprising, and also relevant, that Mr Fugler had no firm recommendation for treatment that might modify the appellant’s sexual behaviour, and regarded his prognosis as “guarded”. In these circumstances, deterrence is a significant factor in arriving at an appropriate penalty.
However, in fairness to the appellant it should be noted that he told Mr Fugler that he avoids getting into situations where young children are present.
The Judge said that in arriving at an appropriate sentence he was guided by the decision of this Court in R v D (1997) 69 SASR 413.
Exercising the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”), he sentenced the appellant to imprisonment for 10 years, and fixed a non parole period of six years. There was, of course, no reduction in the sentence on account of a guilty plea or on account of contrition.
Submissions on appeal
Mr Stokes’ main submission on appeal is that the approach to sentencing indicated by this Court in D should be applied only to offences committed after the decision in D. The offences in question were committed before that decision. He submits that on the basis of sentencing patterns before that decision, the sentence is excessive.
In the alternative, he submits that in any event the sentence is too high. He emphasises the fact that the offending conduct was confined to two separate occasions, some months apart. He submits that this is not a prolonged course of conduct of the kind contemplated in D.
Finally, he invokes the principle of totality.
The appropriate approach to sentencing for these offences
In my reasons in D I reviewed a number of decisions, including decisions of this Court, dealing with sentences for offences of unlawful sexual intercourse with children. I said at 423:
“This review of the decisions of this Court leads me to think that in future the sentences imposed for cases like this should be increased for persons who commit such offences in the future. By this I mean cases involving a course of conduct including unlawful sexual intercourse with a child, and committed by a person in a position of trust and authority.”
I went on to say (at 423-424) that there was a need to reflect more clearly the fact that the maximum sentence for unlawful sexual intercourse with a child under 12 years of age is life imprisonment. My conclusion was as follows at 424:
“It is not necessary for the court to give a warning before increasing the range of penalties for a particular type of offending: Poyner v The Queen (1986) 60 ALJR 616; Yardley v Betts (1979) 22 SASR 108 at 113-114, per King CJ; R v Lewfatt (1993) 3 NTLR 41 at 43-44, per Angel J and (at 45-46) per Priestley J. Nevertheless, as the cases cited recognise, warnings do have a part to play in the sentencing process. I consider it appropriate that the heavier penalty should be imposed in cases in which a conviction is recorded hereafter or a plea of guilty is entered hereafter. Although the heavier range of penalties could be applied in the present case, I consider that as a matter of fairness the present case should be dealt with by reference to the standard reflected in the previously decided cases to which I have already referred.
In my opinion offences involving unlawful sexual intercourse with children under 12 years of age, when there are multiple offences committed over a period of time, should attract as a starting point a head sentence of about 12 years imprisonment. In saying that I refer to a sentence imposed under s 74(7) of the Act and to a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA). That starting point would be subject to reduction on account of a plea of guilty, co-operation with the police, genuine contrition and so on. It is impossible to be precise in these matters, and I do not wish to be taken as suggesting a precise figure. In an appropriate case the starting point might be higher or lower.
When the child in question is over 12 years of age, in my opinion the starting point in such cases should be a head sentence of about 10 years imprisonment.”
Bleby J agreed generally with these observations at 430-431.
Subsequently, the question arose as to whether the higher level of sentencing should apply to offences committed before the date of that decision. In R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231 a majority of the Court said that the higher standard should apply only to offences committed after the decision in D: Mullighan J at [7] – [9], Williams J at [147], cf Gray J at [221] – [224]. In R v P [2003] SASC 428; (2003) 87 SASR 287, Perry J at [62] said that the higher standard should apply to offences committed before the decision in D, Mullighan J at [88] adhered to his previously expressed view, and Besanko J at [96] agreed with the reasons of Perry J.
I agree that the appropriate penalty range for a particular offence or type of offending can be increased by this Court, exercising its function as the Court of Criminal Appeal and applying the heavier sentence to offences committed before the Court so indicates: see the cases referred to by me in D at 424.
But I agree that the observations by the Court in D should be applied only to offences that are committed after the date of that decision.
To apply the standard of sentencing foreshadowed in D to offences that occurred before that decision, amounts to a retrospective change in the approach to sentencing. It also produces the result that an offender sentenced today for offences committed before 1997 is treated more harshly than an offender whose like offences were committed before 1997, but who was sentenced before the decision in D. It is open to the Court to apply a newly formulated sentencing standard to offences committed before the change occurs, but there should be good grounds to ignore the considerations just referred to by me, before one does so. To the extent that the need to deter offenders was a fact influencing the decision in D, that element of deterrence is achieved by applying the highest standard of sentencing to persons who offended after that decision.
Accordingly, I proceed on the basis that the standard indicated by the decision in D is not applicable to the present case.
To arrive at an appropriate sentence in the present case, I have reviewed the decisions to which I referred in D (at 421-423) and have considered a number of other decisions to which we were referred, including DPP v O’Connor (1995) 65 SASR 250; O’Connell v The Queen (unreported, 19 June 1995, judgment no. S5123); R v Krawtschenko (unreported, 22 November 1996, judgment no. S5836); R v Benier (unreported, 13 March 1997, judgment no. S6077). The four decisions to which I have just referred are each decisions of this Court.
The circumstances of the offending in the cases reviewed varied. A plea of guilty was a significant factor in a number of them. I remain satisfied that they indicate a pattern of sentencing that was lower than that proposed in D.
The decisions to which I refer indicate that offences involving unlawful sexual intercourse with a child over 12 years of age, when there were multiple offences as part of a continuing course of conduct over a period of time, often attracted a sentence of imprisonment for about six years, even when the offender pleaded guilty. When the offending occurred over a relatively short period of time, such as just a few months, sentences were in the region of three years to three years six months’ imprisonment after a plea of guilty.
It is appropriate to bear this sentencing pattern in mind, but being mindful that I have attempted to summarise the effect of a number of decisions in different cases. I have not identified a starting point that is to be used in future, I have merely summarised the effect of a number of decisions. Each case must be considered in light of all of the circumstances, but the decisions to which I refer provide a guide to the approach to sentencing prior to the decision of this Court in D.
Consideration of submissions
The Judge was guided by the decision in D in fixing a sentence of 10 years’ imprisonment.
As it happens, I consider that the decision in D is of limited relevance to the present case. In the present case the offences were committed on two separate occasions. The offending conduct is not really a continuing course of offending conduct, although I do not overlook what I referred to as preparatory conduct by the appellant. Even were the standard in D to be applied to the present case, the sentence would have to reflect the fact that the offending conduct was confined to two separate occasions, a substantial period of time apart.
As the standard indicated in D is not applicable, it is appropriate to have regard to sentences imposed before the decision in D. The pattern which emerges indicates that the sentence imposed in the present case is too high. A sentence of about ten years’ imprisonment might have been appropriate if the appellant had been guilty of repeated offences over a substantial period of time.
I take into account the seriousness of the offences, and the significant adverse effects that they have had on the victim and his family. I have regard for the need for individual and general deterrence. The offences committed in 1995 mean that the appellant cannot be sentenced on the basis that he has subsequently ceased offending, and has been of good character. The prospects of the appellant’s rehabilitation are somewhat doubtful. There is no plea of guilty and no indication of contrition. In short, there is not much, if anything, by way of mitigation in the circumstances of the offence or of the appellant.
I consider it appropriate to impose a single sentence of imprisonment, exercising the power conferred by s 18A of the Act for the first group of offences that occurred in about January 1992. They were all committed on the one occasion, and were part of the one incident. I would impose a sentence of four years’ imprisonment for this group of offences.
For the same reasons I would impose a single sentence of imprisonment for the remaining two offences that occurred in 1993. I would again impose a sentence of four years’ imprisonment for these two offences. Although the number of offences on this occasion is less than on the earlier occasion, the sentence should reflect the fact that the appellant chose to repeat his offending conduct.
I would direct that the second sentence be served cumulatively upon the first sentence. It is appropriate to make this order because each occasion represents a quite separate instance of offending conduct. In relation to the combined head sentence of eight years’ imprisonment, I would fix a non parole period of five years. In doing so I have had regard to the uncertainty about the appellant’s rehabilitation.
That disposes of the first two submissions on appeal.
The totality principle does not require consideration. The sentence cannot be regarded as a crushing one.
From time to time the totality principle is invoked in submissions as if it provides a routine basis for reducing what is otherwise an appropriate sentence. Any such submission should be rejected. The totality principle arises when the effect of the sentence that is otherwise warranted for the offences in question is so crushing as to call for intervention of the Court, even though strictly the punishment initially determined may be appropriate for the offences: see Postiglione v The Queen (1997) 189 CLR 295 at 304 Dawson and Gaudron JJ, at 340 Kirby J. As this statement would suggest, the totality principle will not arise in most cases. The totality principle will usually have little part to play when a sentence is imposed, exercising the powers conferred by s 18A and the Judge considers it appropriate to determine that sentence without first attributing a notional sentence to each individual offence, and considering whether each such sentence should be cumulative or concurrent: cf R v Major (1998) 70 SASR 488; R v Place [2002] SASC 101; (2002) 81 SASR 395 at [114].
The sentences that I would impose are not crushing sentences in my opinion, even taking into account the sentence imposed in 1997. The offences the subject of that sentence called for a separate and substantial punishment.
Orders
I would allow the appeal and set aside the sentence imposed by the District Court. On counts 1 to 5 inclusive I would impose a single sentence of imprisonment for four years. On counts 6 and 7 I would impose a single sentence of imprisonment for four years. I would direct that the second sentence be served cumulatively upon the first. In relation to the combined head sentence of eight years, I would fix a non parole period of five years. I would direct that the first sentence of imprisonment commence from 13 August 2004, the date upon which the appellant was taken into custody.
BESANKO J: I agree that this appeal should be allowed for the reasons given by the Chief Justice and I agree with the sentence which he proposes.
In R v P (2003) 87 SASR 287 an issue arose as to whether the heavier penalties for multiple sexual offences referred to by the Chief Justice in R v D (1997) 69 SASR 413 (“D”) applied only to offences committed after D or whether they also applied to offences where the conviction was recorded or the guilty plea was entered after D. I agreed with the reasons for judgment of Perry J, including his Honour’s observation (at [62]) that certain remarks in D suggest that the heavier penalties apply to all cases in which a conviction is recorded or a guilty plea is entered after D, although in the result it was not necessary to decide the point. Mullighan J took a different view and reiterated the view he had expressed in R v Liddy (No 2) (2002) 84 SASR 231 at [9] (see also Williams J at [147]).

In those circumstances, the issue should now be determined by reference to principle rather than by reference to the proper interpretation of remarks made in D. For the reasons given by the Chief Justice, I think that unless there are good reasons to apply the heavier sentences to cases where the offences were committed before the decision in D, the heavier sentences should only be applied in cases where the offences have been committed after the decision in D.
VANSTONE J: I agree that the appeal should be allowed and that the sentence proposed by the Chief Justice should be substituted.