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 application for permission to appeal against sentence.
The defendant and appellant, Andrew Kind, pleaded guilty to the offence of persistent sexual exploitation of a child.[1] The Information alleged that the defendant, between 1 January 2010 and 29 October 2012, over a period of not less than three days, committed more than one act of sexual exploitation of the victim.
[1] Criminal Law Consolidation Act 1935 (SA) section 50(1).
The Judge sentenced the defendant to a term of imprisonment of ten years. In arriving at this sentence, the Judge had made a reduction of two years and six months on account of the defendant’s plea of guilty. The Judge fixed a non-parole period of seven years.
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.
The Judge made reference to the effect of the offending conduct on the victim and, in that respect, remarked:
… There is no doubt that your offending had a profound effect upon the victim that is still ongoing. As she notes, she was a child and was scared of people finding out what was happening. There has been a significant effect upon her education; from a high-achieving scholar her results dropped away and she failed to fulfil her potential. She did not feel safe in her own home where she grew up and moved out at 17 years. Her results then dropped further. It is now difficult for her to establish and maintain relationships. The effect of what she said is that she is now feeling stronger but your abuse of her remains.
The Judge noted that the defendant was of otherwise good character and had no relevant prior conviction. The Judge then observed:
… However, your prior good character and lack of previous convictions evaporated very quickly upon the commission by you of your first offence in 2010 and extended over, as I said, long periods.
When addressing general and personal deterrence the Judge remarked:
I have acknowledged your plea of guilty and acknowledge your genuine remorse. At the same time I need to take into account general and personal deterrence. I expect that after a significant period in gaol you will not need much deterrent but other people, particularly other teachers and those in positions of trust, need also to be deterred. The protection of children and immature teenagers must be a paramount consideration.
The Judge then imposed sentence:
I now turn to the question of sentence. Taking all matters into account, after the discount for your plea, you are sentenced to imprisonment for 10 years with a non-parole period of seven years. Both are to date from the date you went into custody, namely, 5 August 2015.
The Appeal
Counsel for the defendant referred to the guiding principles relating to an appeal against discretion as set out in the High Court decisions of House[2] and Dinsdale.[3] Counsel acknowledged that the defendant needed to demonstrate that the sentence was manifestly excessive.
[2] House v The King (1936) 55 CLR 499.
[3] Dinsdale v The Queen (2000) 202 CLR 321.
Counsel referred to the decision of D[4] and, in particular, its endorsement by section 29D of the Criminal Law (Sentencing) Act 1988 (SA). It was pointed out that Doyle CJ had identified that the starting point when sentencing for offences involving a course of conduct of unlawful sexual intercourse with a child over the age of 12 years should be a head sentence of about 10 years of imprisonment.[5] Doyle CJ was making reference to ongoing sexual offending against a child by a person in a position of trust and authority. Counsel acknowledged that Doyle CJ contemplated that the particular circumstances of a given case may cause a Judge to commence with a higher or lower notional starting sentence. It was counsel’s submission that there was nothing in the circumstances of the present offending that would suggest a notional starting point of more than 10 years and that, in the circumstances, to take as a notional starting point a term of imprisonment of 12 years and six months was manifestly excessive. It was emphasised that such a notional starting point was 25 per cent more than the starting sentence suggested by Doyle CJ.
[4] R v D (1997) 69 SASR 413.
[5] R v D (1997) 69 SASR 413, 424.
When addressing the circumstances of the defendant’s offending, counsel drew attention to the fact that the victim was not as vulnerable as victims who suffer from a physical, mental or social disability. Counsel, while acknowledging the breach of trust, submitted that the breach in this proceeding was not as serious as that of a breach of trust of a parent, foster parent, step-parent or guardian. Counsel drew attention to the terms of section 49(5a) of the Criminal Law Consolidation Act 1935 (SA) and to the listed categories of persons in a position of authority.[6] It was submitted that this Court had recognised, as a significant matter, the degree of trust breached in the particular case.[7] Counsel suggested that the breach of trust in the present proceeding did not fall within the more serious categories of breach of trust.
[6] See also Criminal Law Consolidation Act 1935 (SA) section 50(8).
[7] See 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.
On the topic of the extent of the non-parole period, counsel referred to the following observations of Peek J in R, AW:[8]
It is well accepted that the judge must take into account all relevant matters relating to the offending as well as to the personal circumstances of the defendant both when fixing a head sentence and also when fixing a non-parole period. Nevertheless, there is a clear difference in emphasis of approach to the two tasks. When fixing a non-parole period, subjective matters personal to the defendant and his or her rehabilitation come into much closer focus and different weight may be given to these subjective factors when fixing the head sentence. ...
...
This difference has important consequences for any goal of uniformity in sentencing, particularly in relation to non-parole periods as distinct from head sentences. Putting the matter somewhat simplistically, while it may be realistic to aim for a certain degree of uniformity in head sentences (where there may be a focus on frequently re-occurring comparable sets of objective circumstances) it is less realistic to hope for comparable uniformity in non-parole periods which are more likely to be significantly affected by highly variable sets of subjective circumstances surrounding particular offenders. ...
...
These remarks...recognise that non-parole periods will tend to vary according to differing sets of subjective circumstances and that in cases where a low non-parole period is called for by the particular subjective circumstances, the duty to give effect to the primary policy of protecting children from sexual predators by giving paramount consideration to the need for deterrence may primarily be carried out through the imposition of an appropriate head sentence.
[Footnotes omitted.]
[8] R v R, AW (2013) 113 SASR 179, 192-3, 195-6.
Against this background, counsel submitted that the non-parole period of seven years was manifestly excessive.
The Director, as noted above, opposed a grant of permission. It was submitted that the sentence appropriately reflected the circumstances of the offending. In particular, it was submitted that the offending was very serious and involved the exploitation of a young, immature and emotionally fragile victim. The offending occurred over extended periods, involved a wide range of sexual abuse, including sexual intercourse, and was criminal conduct that was both corrupting and involved a gross breach of trust. It was pointed out that the Judge had specific regard to the need for the sentence to reflect that the defendant had opportunities to reconsider his behaviour during the breaks that occurred in his relationship with the victim and that, notwithstanding these opportunities, the offending had continued. The Judge also considered that the sentence to be imposed should reflect the need to protect children and immature teenagers and, as a consequence, imposed a sentence that would deter others.
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.
These considerations fully justified the Judge in commencing with the notional sentence of more than 10 years. The sentence of imprisonment of 10 years was not outside the range of the Judge’s sentencing discretion.
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.