R v Liddy (No 2)

Case [2002] SASC 306

R v LIDDY (NO 2)

[2002] SASC 306

Court of Criminal Appeal:  Mullighan, Williams and Gray JJ

  1. MULLIGHAN J                 The appellant appeals against the sentence of 25 years with a non-parole period of 18 years upon his having been found guilty by a jury of six counts of unlawful sexual intercourse with a person under the age of 12 years, three counts of indecent assault and one count of offering a benefit to a witness.

  2. The circumstances of the offences are discussed in the judgments of this Court upon the appeal against conviction (R v Liddy (2002) 81 SASR 22) and are summarised in the judgment of Gray J, except in relation to two counts where he has recounted some of the evidence in detail.

  3. In her sentencing remarks the learned Sentencing Judge referred to the connection between the appellant as a coach and the four boys through the life saving club, his position as a Magistrate, which she described as a high position of trust and which she said made his offending particularly serious. She went on to refer to other matters of aggravation, including that the appellant had failed the community expectation that a person in his responsible position should be vigilant in the care and protection of the children of parents who had entrusted him with the responsibility to care for their children.

  4. The appeal proceeded on the basis of contentions that the sentencing discretion had miscarried which necessarily involves consideration of the matters which were before the learned Sentencing Judge which I categorise as the first part of the appeal and also upon matters which have arisen or become manifest since sentence was imposed, which I have categorised as the second part of the appeal. There is some overlap but I have endeavoured to consider the two parts separately.

    Part 1

  5. The first ground of appeal is that the learned Sentencing Judge erred in law in that she purported to sentence the appellant in accordance with current sentencing standards rather than the standards which existed when the offences were committed in 1983 to 1986 and further that she failed to address, or take into account, the substantial delay between the date of the offences and the date of sentencing.

  6. Upon sentencing, the learned Sentencing Judge specifically referred to R v D (1997) 69 SASR 413. In that case the Court was concerned with the offence of persistent sexual abuse of a child. This offence is created by s 74 of the Criminal Law Consolidation Act 1935 which came into operation in 1994. The offender in D was aged 41 years when he was sentenced. He was the stepfather of the victim. He committed a series of sexual offences against her over a period of about two months on almost a daily basis when she was aged 12 years involving indecent touching, sexual intercourse, masturbation of him by the child, fellatio and cunnilingus. None of the offences constituted rape. Section 74(7) provides:

    “A person…

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R v Liddy (No 2) [2002] SASC 306
Case
[2002] SASC 306
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CaseChat Overview and Summary

The case of R v Liddy (No 2) involves an appeal against the sentence imposed on the appellant, Liddy, who was convicted of various offences including indecent assault and offering a benefit to a witness. The appeal was allowed on the basis that it had not been proved beyond reasonable doubt that the victim was under 12 years of age. The substituted verdict was entered on the same basis. The maximum penalty in these circumstances is eight years imprisonment. The legal issues before the court included whether the appeal against the sentence was valid, the appropriate sentence for the offences committed, and the consideration of victim impact statements.

The court considered the severity of the crimes, the breach of trust by the appellant, and the lack of contrition. It was noted that the crimes caused serious harm to the victims and had a profound effect on the community. The court emphasised the importance of deterrence and the need to protect children from such conduct. The court also addressed the complaint about the consideration of victim impact statements, stating that it is undesirable for judges to consider the views of victims' families about penalty. The court found that the judge did not err in refusing to further adjourn the sentencing process to allow the appellant time to obtain legal representation. The sentence of 25 years imprisonment with a non-parole period of 18 years was deemed appropriate, taking into account various factors and considerations.

The court allowed the appeal against the sentence and substituted a sentence of eight years imprisonment with a non-parole period of six years. The sentence was to commence from 5 June 2001, the date on which the appellant was first taken into custody.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MULLIGHAN J
A sentence of 25 years imprisonment is appropriate. A non parole period of 18 years should be fixed[76]. The sentence should commence from 5 June 2001 the date on which the appellant was first taken into custody. [76] This is the same sentence that was imposed by the sentencing judge although a number of different considerations have been taken into account.JUDGMENT CITATIONS (IN FOOTNOTES ONLY)LISTED IN ORDER OF APPEARANCE IN JUDGMENTS[1]The sentencing remarks included the following: “The sentence of the court is, therefore, that you be imprisoned for a period of 25 years. I fix a non parole period of 18 years, that being the minimum period that you will be required to serve before being eligible to apply for parole. I direct that the sentence and the non parole period commence from 5 June 2001.”[1] The appeal was allowed on the basis that it had not been proved beyond reasonable doubt that the victim was under 12 years of age. The substituted verdict was entered on the same basis. The maximum penalty in these circumstances is eight years imprisonment.[1] (1981-1982) 149 CLR 1 at 22-33[1] (2000) 203 CLR 452 at 469[1] R v Liddy (2001-2002) 81 SASR 22 at [426-431] and [459][1] (1986-87) 44 SASR 587 at 589 - see Bailey (1988) 34 A Crim R 154[1] (1991) 53 A Crim R 391 at 395[1] One complaint is of a different character. It was said that the judge erred in refusing to further adjourn the sentencing process to allow the appellant time to obtain legal representation. The judge was faced with a difficult situation. There was a history of delay. The judge had already deferred sentencing for some months before rejecting the appellant’s request. At one time it was submitted by the appellant that sentencing should be deferred until the appeal against conviction had been dealt with. Delay in sentencing affected the position of the victims of the crimes. No error in this respect has been established on the part of the judge.[1] R v Liddy (2001-2002) 81 SASR 22 per Mullighan J at [7-22], per Williams J at [470-473], per Gray J at [536-545][1] R v Liddy (2001-2002) 81 SASR 22 at [7-24][1] R v Liddy (2001-2002) 81 SASR 22 at [543] footnote 8[1] [2000] SASC 98 at [72-73][1] (1999) 198 CLR 111 at 121-2. See also Hayne J at 156[1] [1977] 1 NSWLR 594 at 597[1] [2001] HCA 64 - See also Pearce v The Queen (1998) 194 CLR 610 where McHugh, Hayne and Callinan JJ said: “Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.”[1] (2001) 75 ALJR 815 at 822 - 824 - See also Case Note: Ryan v The Queen Paradox and Principle in Sentencing a Paedophilic Priest: Ryan’s case in the High Court Melbourne University Law Review vol 26[1] Reasons of Kirby J at [128][1] (1978) 20 ALR 1 at 4[1] (1988) 164 CLR 465 at 476-477[1] (1988) 164 CLR 465 at 473[1] Veen v The Queen [No 2] (1988) 164 CLR 465 at 476.[1] R v Dole [1975] VR 754 at 769.[1] Warner, Sentencing in Tasmania (1991) at 250.[1]Glaser, "Paedophilia: The Public Health Problem of the Decade" - Australian Institute of Criminology, Paedophilia: Policy and Prevention (1997) 4 at 7.[1] R v Kane [1974] VR 759 at 764-766; R v Williscroft [1975] VR 292 at 299; R v Holder [1983] 3 NSWLR 245 at 270; R v Young [1990] VR 951 at 955.[1] R v Young [1990] VR 951 at 954.[1] unreported 13 November 1985[1] (1996) 188 LSJS 93 at 95[1] (1997 - 1998) 70 SASR 488 at 498[1] (1997-19988) 70 SASR 488 at 500[1] (1997-1998) 70 SASR 488 at 490. See also the dissenting judgment of Smart J in R v PLV (2000-2001) 51 NSW LR 736 at 746:“While I would not regard it as decisive I would take into account the sentence which would have been imposed for the offence in 1974 or 1975. The weight to be attached to that factor, if any, will depend upon the circumstances including the mitigating factors which emerge. This is of some importance where the legislation governing the offence has been repealed. It is useful to do so as a check as to the correctness of the sentence intended to be imposed....In the present case the judge’s approach to sentence was correct in that he assessed the applicant’s criminality at the time of the offence and then took into account the applicant’s subjective features existing at 1974 and today. The sentencing judge would not have been aware of the sentences being imposed in 1974 for an offence such as the present one.”These remarks were approved by a majority of the court in R v MJR [2002] NSW CCA 129[1] [1982] 2 NSWLR, 517 at pp 519-520[1] (1988-1989) 166 CLR 59 at 65-66 see also Radenkovic v The Queen (1990) 170 CLR 623 at 632[1] Holyoak (1995) 82 A Crim R 502[1] (1990) 12 Cr App R 122 at 125. These remarks were applied in Dick (1994) 75 A Crim R 303 at 307-308. See also Fox and Freiberg Sentencing State and Federal Law in Victoria 2nd ed 1999 at 333-336 especially footnote 994[1] (1995) 82 A Crim R 502 at 508 - 509[1] R v Deputy Governor of Pankhurst Prison; ex parte Hague [1992] 1 AC 58 at 165; Prisoners A-XX Inclusive v State of New South Wales (1995-1996) 38 NSWLR 622 at 627[1] Sentencing: State and Federal Law of Victoria (2nd Edition Oxford University Press 1999), p 652 Fox and Freiberg, Sentencing State and Federal law in Victoria 2nd ed 1999[1] R Edney “Hard Time, Less Time: Prison Conditions and the Sentencing Process” Criminal Law Journal volume 26 June 2002 at 139-151 [1] (1979) 68 Cr App R 319[1] (1979) 68 Cr App R 319 at 322 [1] (1992-93) 64 A Crim R 289 at 293. See also R v Rostom [1996] 2 VR 82 [1] (1999-2000) CLR 295 at 316[1] (1999) 198 CLR 111 [1] R v Lowe (1977) 66 Cr App R 122 at 126; R v Davies (1978) 68 Cr App R 319 [1] R v Cartwright (1989) 17 NSWLR 243 at 255[1] In R v Davies (1978) 68 Cr App R 319 at 322 it was said that one year of solitary confinement is equivalent to 18 months to two years’ ordinary imprisonment because of the ‘intense severity’ of the regime. See also R v Perez-Vargas (1987) 8 NSWLR 559 at 563 per Street J[1] Unreported, NSW Court of Criminal Appeal, 17 November 1983[1] (1987-1988) 35 A Crim R 458[1] Disadvantages cited included less space than the general prison, restricted movement and access to visitors and an enclosed exercise yard.[1] (1997) 107 A Crim R 415[1] (1986-87) 44 SASR 587 at 589. See also R v Perez-Vargas (1987) 8 NSWLR 559[1] See [12][1] (1995-96) 66 SASR 380 at 382-383[1] (2001) 75 ALJR 815 [1] at [177], [186][1] at [123][1] [52-55][1] Richards (1980) 2 Cr App R (S) 119.[1] R v Wright [No 2] [1968] VR 174 at 180.[1] R Fox Case note: Ryan v The Queen Paradox and Principle in Sentencing a Paedophilic Priest: Ryan’s Case in the High Court Melbourne University Law Review 2002 Vol 26 at 178-191 [1] Ryan v The Queen (2001) 75 ALJR 815 at 840[1] (1997) 69 SASR 413 at 423-424[1] [2001-2002] 81 SASR page 395 at [31-33][1] (1983-84) 36 SASR 101, see R v Esposito v R [2000] SASC 182[1] Inge (1999) CLR 295 at [3] [58][1] R v Miller (1999-2000) 206 LSJS 313; R v Bazley (1992-1993) 65 A Crim R 154[1] “(n) the probable effect any sentence under consideration would have on dependants of the defendant; ...”[1] R v Birmingham (No 2) (1997) 69 SASR 502; Marchant v Police (1999-2000) 76 SASR 234; Bekker v Police (2001) 120 A Crim R 170[1] R v Agius (2000) 77 SASR 469[1] (2001) 120 A Crim R 170[1] [2000] SASC 207 at [4][1] (1997) 69 SASR 413 at 423[1] (2001) 75 ALJR 815 at 837[1] [1999] SASC 217 at 4-5[1] This is the same sentence that was imposed by the sentencing judge although a number of different considerations have been taken into account.

Ratio Decidendi

Legal Principle Established

Established by: MULLIGHAN J

Counsel for the appellant complained that the victim impact statements provided opinions about penalty. As observed in Bekker v Police[71] it is undesirable for judges to consider the views of a victims’ family about penalty. Debelle J in Drohan v Police[72] encountered a similar situation:“Before sentencing the appellant the magistrate had adjourned the matter to enable the victims of the offence to attend before the court. I make no criticism at all of that practice. There are obvious advantages in it. It makes the defendant confront those who are the victims of the crime. However, the magistrate went a little further. She invited each of the two victims to express their view as to the appropriate penalty. Both said they believed that the appellant should serve a period of imprisonment. I think it was undesirable for the magistrate to invite the victims to express a view as to penalty. Victims not skilled in the sentencing process will not usually have regard to all of the factors bearing upon the proper exercise of the sentencing discretion. The fact that the magistrate invited those views raises the question whether the magistrate believed it was necessary to impose a period of imprisonment because that view had been expressed by the victims. The magistrate should not invite victims to express views as to penalty.”It is appropriate for the court to disregard observations of this character.[71] (2001) 120 A Crim R 170[72] [2000] SASC 207 at [4]Reconsideration of Sentence The appellant’s sexual offending involved grave criminal conduct towards young children. There were matters of aggravation which have been referred to earlier. They included the breach of trust by the appellant arising from his position as a surf lifesaving coach and the use of his office as a magistrate. The appellant engaged in an ongoing course of criminal conduct. The offence of offering a benefit to a witness was additionally a serious crime. An aggravating feature was that it was committed by a serving magistrate. General deterrence is an important consideration. The effect of the appellant’s criminal conduct on each victim must be considered. The consequences on all victims have been grave. Some have suffered more than others. It is to be observed that there is no evident contrition or remorse on the part of the appellant. As the sentencing judge observed:“You continue to maintain your innocence and you have not shown any contrition in this matter. As a result, each of these young men was obliged to give evidence at the trial. It was obvious that was very distressing for each of them. I only hope that the court process will, to some extent, assist them in achieving a sense of closure so that, eventually, they will be able to lead normal lives.” These matters are of particular relevance when regard is had to the observation of Doyle CJ in D[73]:“They are offences [sexual offending against children] 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.”[73] (1997) 69 SASR 413 at 423