R v LLK

Case [2003] SASC 431

R v LLK
[2003] SASC 431

Court of Criminal Appeal:       Doyle CJ, Perry and Gray JJ

  1. DOYLE CJ:          The appellant pleaded guilty in the District Court to four counts of unlawful sexual intercourse with a person of the age of 14 years.  The maximum penalty for each of offence is imprisonment for seven years.  The Judge sentenced him to imprisonment for 10 years six months, and fixed a non-parole period of seven years six months.  The appellant appeals against the sentence on the ground that it is manifestly excessive.

    Facts

  2. The appellant pleaded guilty on the basis that these four counts were representative of a course of conduct over a period of about five months.  The appellant was to be sentenced only for the four offences to which he had pleaded guilty.  However, the acceptance that these offences were part of a course of conduct meant that he could not claim to be sentenced on the basis that they were isolated acts.

  3. At the time of the offences the appellant was 45 years of age.  As I have said, the victim was 14 years of age.  She was the daughter of a woman with whom the appellant had been living in a domestic relationship for a period of about eight years.

  4. The offences came to light when the mother found the appellant and her daughter in suspicious circumstances.  The following day the mother spoke to her daughter, and she then disclosed the offending for the first time.

  5. These offences were the result of the appellant imposing his will on the victim.  In doing so he exploited her immaturity, his position in the family, and the opportunity that presented to him.  There is no reason to doubt that the victim submitted to the appellant only because of the position of authority in which he stood as a member of the family group, and because of her immaturity. The material before the Judge also indicated that another reason for the victim submitting was that she was afraid of the appellant, who had displayed violence at times.  A report from a psychologist that was placed before the Judge expressed the opinion that the appellant engaged in his offending “with minimal regard” for the wellbeing of the victim.  The psychologist said that the appellant’s “primary focus was his own gratification and egocentric focus and [he] had little empathy for his victim.”

    The sentence

  6. All in all, this is a serious instance of what is always a serious offence.  As has been said often before, the court must do what it can, by imposing severe punishment, to deter men who are inclined to commit offences of this kind.  Children in a family setting are in a vulnerable situation, and this is one of the few ways in which the courts can protect them.  I refer to what I said about offending of this type in R v D (1997) 69 SASR 413 at 423 - 424 and to what Bleby J said at 430 -…

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R v LLK [2003] SASC 431
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[2003] SASC 431
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CaseChat Overview and Summary

In the matter of R v LLK, the appellant, LLK, was convicted and sentenced by the District Court for multiple offences involving sexual acts with his step-daughter. The court was required to determine the appropriate sentence, specifically whether the original sentence was manifestly excessive, and if not, to fix a suitable non-parole period. The Court of Appeal was tasked with examining the sentence imposed by the District Court and considering the appellant's appeal against the severity of the punishment.

The primary legal issue before the court was whether the District Court's sentence was manifestly excessive. The appellant argued that the sentence was disproportionate to the crimes committed. The court had to consider the appellant's lack of remorse and the psychologist's report highlighting the appellant's egocentric focus and lack of empathy for his victim. Additionally, the court needed to navigate the complexities of sentencing for multiple offences, ensuring that the aggregate penalties did not result in a sentence that was disproportionately severe.

The court acknowledged the difficulties in sentencing for multiple offences, emphasizing the importance of relating a single sentence to the individual sentences that would have been imposed if separate sentences were to be given. The court found that while the sentence was serious, it was not manifestly excessive. The absence of remorse and the psychologist's report were key factors in determining the appropriate length of the sentence. The court fixed a non-parole period of seven years, influenced by the appellant's lack of remorse and contrition. The court concluded that the sentence should reflect the overall criminality involved and set a single sentence of imprisonment for ten years, with a non-parole period of seven years.

The final orders of the court included allowing the appeal, setting aside the sentence imposed by the District Court, and sentencing the appellant to a single sentence of imprisonment for ten years, with the non-parole period fixed at seven years. The head sentence and the non-parole period were to commence from 8 November 2001.

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

PERRY J (dissent)
I would fix a non-parole period of seven years. In so deciding I am influenced by the absence of remorse and contrition.Conclusion I would allow the appeal, set aside the sentence imposed by the District Court, sentence the appellant to a single sentence of imprisonment for 10 years, and fix a non-parole period of seven years. The head sentence and the non-parole period should commence from 8 November 2001. I have had the benefit of perusing the reasons of the Chief Justice in this matter, in which he sets out the circumstances leading up to this appeal. I agree that this is a serious case of its kind. The psychologist who provided a report, which was put before the sentencing judge, stated that the appellant had:“... engaged in sexual acts with his step-daughter with minimum regard for her well being ... [his] primary focus was his own gratification and egocentric focus and [he] had little empathy for his victim.” The appellant pursued one ground of appeal only, namely that the sentence was manifestly excessive. The case illustrates the difficulties associated with the process of sentencing for multiple offences. To aggregate the penalties which each individual offence might properly attract, taken in isolation, will often produce a sentence which is out of proportion to the total offending. While no doubt that result may be avoided by constructing a sentencing package in which some sentences are made cumulative and others concurrent, such a process has its limitations. A preferable approach in some cases may be to take a single sentence which appears appropriate to the overall offending as a starting point, and then to make whatever discount may be appropriate, having regard to any plea of guilty or other mitigating circumstances. It is clear from R v Major[1] that the utilisation of the power to impose a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 does not mean that the sentencing judge should follow one process or the other. Major is authority for the proposition that if s 18A is utilised, the single sentence imposed under s 18A will “lack a proper basis, and will not appropriately the overall criminality involved” unless the sentencing judge, during the process of considering the single sentence to be imposed, has regard to the sentences which it would have been appropriate to impose had separate sentences been fixed in respect of each offence.[2][1] (1998) 70 SASR 488.[2] See Major (supra) per Doyle CJ at 490. That Major does not identify the only process to be followed when s 18A is utilised, is clear from the remarks of the Chief Justice, with whom Prior and Mullighan JJ agreed, in R v Symonds.[3] In that case, Doyle CJ observed:“In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s 18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s 18A, but not to impose upon them a rigid formula that must be followed.In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s 18A were not available. The power conferred by s 18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.” (emphasis added)[3] [1999] SASC 217.

Ratio Decidendi

Legal Principle Established

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