R v LEES - [2004] SASC 390

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LEES
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
7 December 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - TOTALITY
The appellant pleaded guilty to two charges of unlawful sexual intercourse with an eight year old girl and one count of indecent assault of a thirteen year old boy - the sentencing Judge fixed individual sentences and then determined that they should be served cumulatively - total imprisonment period of seven years and two months imposed for both offences - non-parole period fixed at four years - appellant appeals against sentence on grounds that: the sentence is manifestly excesssive, offences were singular instances as opposed to a course of conduct, principle of totality incorrectly applied - held: sentencing judge did not err in application of totality principle, appropriate discounts given for pleas, sentence not manifestly excessive - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA), referred to.
R v D (1997) 69 SASR 413, applied.

R v LEES
[2004] SASC 390
Court of Criminal Appeal: Duggan, Bleby and Anderson JJ

DUGGAN J I agree with the reasons prepared by Anderson J.
BLEBY J I agree with the reasons of Anderson J for dismissing this appeal.
ANDERSON J In this matter the appellant had appealed against a sentence of imprisonment imposed by a District Court Judge on 15 June 2004. This court on 21^st October dismissed the appeal and I now publish my reasons.
The appellant pleaded guilty to two counts of unlawful sexual intercourse with an eight year old girl contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). The offences involved two separate incidents occurring within a few minutes of each other, in which he digitally penetrated her vagina.
He also pleaded guilty contrary to s 56 of the Act to indecently assaulting the girl’s thirteen year old brother by fondling the thirteen year old’s penis when he was asleep whilst masturbating himself at the same time. The maximum penalties for these offences are, respectively, life imprisonment and eight years imprisonment.
The appellant was in the position of guardian of the children at the relevant times. He was thirty-one years old at the time of the offences. He had previously been in a relationship with the children’s mother, and because of the trust placed in the appellant by her and the children, they were sleeping over at his house. The incidents of sexual intercourse with the girl and the indecent assault of the boy occurred at different times.
The offending has had a drastic effect on the lives of both of the children as illustrated by their victim impact statements. Their mother has also filed a compelling statement.
The appellant was sentenced by the learned Judge to seven years and two months imprisonment with a non-parole period of four years. The Judge assigned a single period notionally of seven years for the two offences of unlawful sexual intercourse, and reduced it to six years because of the late pleas of guilty. He then assigned a notional period of one year and six months to the offence of indecent assault, and then reduced that to one year and two months to reflect the plea of guilty. His Honour then made the sentences cumulative.
Therefore, the aggregate period for the three offences became seven years and two months, and the learned Judge imposed a single sentence upon which he then fixed a non-parole period of four years. The head sentence and the non-parole period commenced on the day that the appellant went into custody, namely, 24 May 2004.
In this appeal, the submissions made on behalf of the appellant were that the charged acts were not representative of any course of conduct, the appellant had admitted his guilt shortly after the offence of indecent assault, and he eventually pleaded guilty to the two counts of unlawful intercourse just prior to the trial.
In addition, it was submitted that the appellant had no relevant antecedents, and that he was a good candidate for rehabilitation and parole.
The essential part of the argument put on behalf of the appellant was that the penalty was more in line with the “course of conduct” cases than with the singular offences charged. While the offences were not representative of a course of conduct, they were not isolated offences, and the offending stopped only after the appellant was caught committing the indecent assault. It was not a voluntary cessation.
It was not seriously argued on the appeal that a suspended term of imprisonment was an option for the sentencing Judge. Anything less than a term of imprisonment to be served immediately would not reflect, as the sentencing Judge said:
“…the seriousness of your conduct, especially in relation to the age of the female child, and the need to deter you and other would-be offenders from conduct of this kind. You were a member of the family unit at the time. The children were often in your company, and their mother entrusted you with their welfare. In each case, your conduct amounted to a serious breach of trust.”
I endorse those remarks.
For offences of this type involving children under twelve, and with a course of unlawful conduct over a period of time, a starting point in the head sentence of about twelve years was nominated by Doyle CJ in the decision in R v D (1997) 69 SASR 413, in particular at (424).
Doyle CJ also said in his reasons (at 423), in the context of a review of the earlier decisions of the court:
“…They are offences that cause a feeling of outrage and revulsion in the community. The penalty must reflect that feeling. They involve a serious breach of trust. As this case makes clear, such offences cause serious harm to the victim in many cases. There is every likelihood that the effects of that harm will be prolonged, and perhaps lifelong. The courts must do what they can to protect children from such conduct. Deterrence is an important part of sentencing for an offence such as this. Although reasons for the offending vary, and sometimes the offenders are persons who were themselves sexually abused as children, it seems clear that such offenders are not usually persons who are unable to control their sexual instincts. While acknowledging that the punishment of offenders is only one factor that may limit the incidence of this offence, the courts must proceed on the basis that punishment has a part to play in deterring offenders.
Offences such as the present one have an insidious effect upon the community, and that is also something to consider. They lead, and I suspect are already leading, to a loss of trust in the very persons upon whom we often rely for the nurture of children, for their education, and for guidance, leadership and instruction for children. As our society becomes more aware of the extent to which children are subjected to sexual abuse, this insidious effect is increasing.”
That was a decision in which the Chief Justice warned about the need to increase sentences for offences of this type in the future.
In relation to the two offences of unlawful sexual intercourse, the starting point for the learned sentencing Judge was seven years and two months. That was, in my view, not such a sentence which calls for review because it is within a range of penalties that could be regarded as appropriate, albeit, not a lenient sentence. It was not seriously suggested that the starting point for the indecent assault charge, namely eighteen months, was inappropriate.
The discount allowed of approximately fifteen percent for the guilty plea for the offence of unlawful sexual intercourse on the morning of the trial, in my view, was on the generous side. In relation to the plea relating to the indecent assault charge, a discount of twenty-three percent was allowed by the sentencing Judge from his starting point of eighteen months imprisonment. I consider both the discounts allowed to be appropriate.
Similarly, there is no doubt, in my view, that the learned sentencing Judge considered and correctly applied the principle of totality by determining that the sentences should be cumulative and fixing an appropriate non-parole period. I agree that the final result was appropriate and within the sentencing discretion of the Judge.
Having regard to the decision in R v D and the cases referred to in that judgment, and in particular the warning about the need to increase sentences, this sentence, in my view, is not manifestly excessive.