R v Kind - [2016] SASCFC 14

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KIND
[2016] SASCFC 14
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Kelly and The Honourable Justice Blue)
16 February 2016
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 - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - BREACH OF TRUST
Application for permission to appeal against sentence. The appellant pleaded guilty to the offence of persistent sexual exploitation of a child. The appellant had been the victim’s home class teacher in 2009. The victim changed schools in 2010 but continued to see the appellant as he arranged for her to teach piano to his daughter. In January 2010, sexual activity between the victim and the appellant commenced at the appellant’s home. The victim was 14 years of age. The relationship continued for a period of more than two years. There were breaks in the sexual activity over that period, including from July 2010 to October 2010, when the victim made a complaint of rape to the police. She subsequently withdrew that complaint.
The Judge sentenced the appellant to a term of imprisonment of ten years after making a reduction of two years and six months on account of the appellant’s plea of guilty. The Judge fixed a non-parole period of seven years.
Whether the head sentence and non-parole period were manifestly excessive.
Held per the Court (dismissing the appeal):
1.       The sentence of imprisonment of 10 years was not outside the range of the Judge’s sentencing discretion. Although the non-parole period of seven years is substantial, it is not manifestly excessive.
2.       The appellant took advantage of the victim’s tender years, and used his position of trust and the victim’s dependence to subordinate her will.
3.       The appellant’s offending occurred in circumstances of a gross breach of trust. It is significant that he became aware that the victim considered the relationship to be abusive and had complained to the police. Notwithstanding this, the appellant persuaded her to continue the relationship of sexual exploitation. Little weight can be given to his otherwise good reputation in these circumstances.
Criminal Law Consolidation Act 1935 (SA) s 49(5a), s 50(1) and s 50(8); Criminal Law (Sentencing) Act 1988 (SA) s 29D, referred to.
House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321; R v D (1997) 69 SASR 413; R v Chiro (2015) 123 SASR 583; R v Fleming [2011] SASCFC 75; R v Pilling (2010) 108 SASR 114; R v Vance [2015] SASCFC 122; R v R, AW (2013) 113 SASR 179, considered.

R v KIND
[2016] SASCFC 14
Court of Criminal Appeal: Gray, Kelly and Blue JJ
THE COURT.

This is an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kind

Details

AGLC: R v Kind [2016] SASCFC 14
Case: [2016] SASCFC 14
Decision Date: 16 February 2016

CaseChat Overview and Summary

This case concerned an application for permission to appeal against sentence by the defendant, who had pleaded guilty to one count of persistent sexual exploitation of a child. The Director of Public Prosecutions opposed the application. The defendant had previously been refused permission to appeal by a single judge of the court.

The legal issues before the Full Court were whether the head sentence and the non-parole period imposed by the sentencing judge were manifestly excessive. The court was required to consider the nature and circumstances of the offence, particularly the significant breach of trust involved, and the impact of the offending on the victim.

The court found that the defendant's offending involved a gross breach of trust, stemming from his prior relationship as the victim's teacher and his role in facilitating a friendship between the victim and his daughter, for which the victim was providing piano lessons. The defendant, a man of approximately 45 years, engaged in frequent and varied sexual activity with the victim, who was 14 years old when the offending commenced and 15 when she first complained to the police. Despite breaks in the relationship, including the victim's police complaint and the commencement of a relationship with a boyfriend, the defendant resumed the sexual exploitation, demonstrating predatory behaviour. The court noted the victim's significant suffering and the lasting adverse impact on her development and social interactions.

The court concluded that while the seven-year non-parole period was substantial, it was not manifestly excessive given the gross breach of trust, the defendant's predatory conduct, and the serious consequences for the victim. Accordingly, the application for permission to appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The defendant has sought permission from this Court to appeal, contending that both the head sentence and the non-parole period were manifestly excessive. The Director has opposed a grant of permission. The defendant was earlier refused permission to appeal by a Judge of this Court. Background The defendant was originally arraigned on Information which charged 11 counts of unlawful sexual intercourse, one count of indecent assault and two counts of persistent sexual exploitation of a child. All charges related to the one victim. The defendant met the victim in 2009 at Aberfoyle Park High School when the defendant was the victim’s home class teacher. At the end of 2009, the defendant and victim agreed that the victim would teach piano to the defendant’s 12 year old daughter. The victim changed schools at the beginning of the 2010 school year. There was no student and teacher relationship between the defendant and the victim after 2009. In about late 2009 or early 2010, the victim attended at the home of the defendant for the first piano lesson. Over time, the victim became friends with the daughter whom she taught piano. On or around 21 January 2010, sexual activity between the victim and the defendant commenced. The victim was then 14 years of age. On or around 8 March 2010, the first act of penile vaginal intercourse took place. Between January and May 2010, sexual activity took place at the defendant’s house and, on occasions, at the victim’s house. Between about 1 July 2010 and 5 October 2010, there was a cessation in sexual contact when the victim made a complaint of rape to the police. However, the complaint was withdrawn and the sexual contact resumed before ceasing again in about December 2010 as a consequence of the victim commencing a relationship with a boyfriend. At that time the victim was 15 years of age. In about September or October 2011, sexual contact resumed. The relationship continued until March 2013. The unlawfulness of the sexual contact ceased during October 2012, when the victim turned 17 years of age. The sexual activity between the defendant and the victim occurred frequently and included cunnilingus, fellatio, digital penetration and penile vaginal sexual intercourse. On 21 October 2013, the victim attended at the Sturt Police Station to report the defendant. The trial commenced on 10 February 2015. The victim commenced her evidence in chief late in the afternoon of that day. On 11 February 2015, the trial was adjourned to allow the police to conduct analysis on the victim’s laptop computer. Following this investigation, on 3 August 2015, a new Information was filed. This Information charged a single count of persistent sexual exploitation of a child and replaced the previous 14 count Information. The defendant pleaded guilty and submissions proceeded. In his sentencing remarks, the Judge summarised the offending conduct and then observed:There is no need to traverse all of the sexual activity, but the summary with which I have been provided and the particulars in the Information show there was an extensive range of activity over long periods and they would occur reasonably often. As mentioned, there were breaks in sexual activity that gave you abundant time and opportunity for reflection that your actions were criminal, corrupting and involved a gross breach of trust. The fact that you did not do so reinforces how serious your offending should be viewed.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is to be acknowledged that a non-parole period of seven years is substantial. It is to be recalled, however, that the defendant was a mature man aged about 45 years. As discussed above, the defendant’s offending occurred in circumstances of a gross breach of trust. It is significant that he became aware that the victim considered the relationship to be abusive and had complained to the police. Notwithstanding this, the defendant persuaded her to continue the relationship of sexual exploitation. Little weight can be given to his otherwise good reputation in these circumstances. Although the non-parole period is substantial, it is not manifestly excessive.Conclusion The application for permission to appeal is dismissed.

Ratio Decidendi

Legal Principle Established

The Director contended that, contrary to the defendant’s submission, the breach of trust could be properly described as a gross breach of trust. The defendant employed the victim to teach his daughter piano and he was entrusted by the victim’s parents with the care of their daughter while she was at his home. Consideration The offending commenced in circumstances where the victim, then aged 14 years, was engaged to provide music lessons to the defendant’s 12 year old daughter. At this time the defendant was estranged from his wife and it appears that his daughters lived with him some of the time. It is apparent that the defendant encouraged the developing friendship between the victim and his younger daughter. In a very real sense, the defendant was entrusted with the care of the victim by her parents and the trust engendered was enhanced by the developing friendship between the victim and the defendant’s daughter. Further, the defendant had been his victim’s school teacher and this relationship of teacher and pupil provided a foundation of trust on the part of the victim in the defendant. Although the sexual offending commenced soon after the time when the teacher and student relationship concluded, the impact of that relationship and the trust engendered by that relationship continued. As mentioned earlier, the sexual exploitation occurred over a period of more than two years. Importantly, there were breaks in the relationship which provided the defendant with the opportunity to reflect on his conduct and to bring it to an end. The first occurred in July 2010, some months after the relationship commenced, when the victim went to the police and complained of rape. During this time, the defendant had the opportunity to reflect on his conduct. It was plain that he was causing distress to the victim to the point where she complained to the police that she had been raped. Notwithstanding his awareness of these matters, he set about resuming the relationship in October 2010. This was truly predatory behaviour. Between about December 2010 and September 2011, there was a further period of separation when the victim formed a relationship with a boyfriend. Again, this circumstance brought to the defendant an awareness that the victim was presumably looking to have a relationship with somebody her own age and to break from the relationship with him. Notwithstanding these matters, when the opportunity arose the defendant resumed his conduct of sexual exploitation. These matters demonstrate that the defendant took advantage of the victim’s tender years, and used his position of trust and the victim’s dependence to subordinate her will. He was able to persuade her to engage in and continue a relationship of sexual exploitation. This was predatory conduct by a man aged about 45 toward a child. A gross breach of trust occurred, and continued for a number of years. Earlier in these reasons, reference has been made to the Judge’s remarks concerning the victim impact statement. A reading of that statement confirms the very real suffering of the victim and the lasting adverse impact the defendant’s conduct will have on her life. That conduct has adversely affected her development, education, ability to socially interact and ability to develop long term relationships. These are serious consequences and arise directly from the defendant’s sexual exploitation of the victim.