R v LIDDY (NO 2)
[2002] SASC 306
Court of Criminal Appeal: Mullighan, Williams and Gray JJ
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.
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.
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.
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
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.
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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CaseChat Overview and Summary
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
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