R v M, F

[2017] SASCFC 114

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v M, F

[2017] SASCFC 114

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Nicholson and The Honourable Justice Doyle)

7 September 2017

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - GENERAL PRINCIPLES

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE

Appeal against sentence. The appellant was tried before a jury on eight counts: four counts of indecent assault, three counts of unlawful sexual intercourse with a person under the age of 12 years and one count of unlawful sexual intercourse with a person under the age of 17 years. The charges related to the appellant’s daughter. The complainant also gave evidence at trial of uncharged sexual conduct committed against her by the appellant.

The appellant was found guilty of one count of indecent assault and one count of unlawful sexual intercourse with a person under the age of 17 years. The sentencing Judge imposed a single sentence of seven years imprisonment with a non-parole period of four years and six months.

On appeal, the appellant’s primary contention is that the Judge’s findings as to the nature and extent of the uncharged sexual conduct by the appellant were in error, and accordingly, his Honour erred by sentencing on the basis of a background of penetrative sexual conduct. The appellant also contends that the head sentence and non-parole period are manifestly excessive.

Held per Nicholson J (Kelly and Doyle JJ agreeing), dismissing the appeal:

1.  Neither the head sentence nor the non-parole period are manifestly excessive.

2.  The starting point of seven years imprisonment was within the range available to the Judge, in the absence of a plea of guilty and given the nature of the two offences, the consequences of the offending and the lack of any demonstrated contrition. While the non-parole period might be seen as towards the upper end of the available range given the appellant’s personal circumstances, it is not manifestly excessive.

3. The findings made by the Judge as to the background of sexual conduct were open to his Honour as a matter of law and fact. The reasoning of Doyle CJ in R v Macbeth [2008] SASC 71 is applicable.

Criminal Law (Sentencing) Act 1988 s 18A; Criminal Law Consolidation Act 1935 s 49, s 56, referred to.
R v D [1997] SASC 6350, (1997) 69 SASR 413; Hili v The Queen [2010] HCA 45, (2010) 242 CLR 520; The Queen v Morse (1979) 23 SASR 98; R v MacBeth [2008] SASC 71, considered.

R v M, F
[2017] SASCFC 114

Court of Criminal Appeal:   Kelly, Nicholson and Doyle JJ

KELLY J.         

1. I agree that the appeal should be dismissed for the reasons given by Nicholson J.

   NICHOLSON J.                 

   Introduction and background

2. FM, the appellant,[1] was tried before a jury in the District Court on an information charging him with the following offences:[2] counts 1 to 4 being four counts of indecent assault,[3] counts 5 to 7 being three counts of unlawful sexual intercourse with a person under the age of 12 years[4] and count 8 being one count of unlawful sexual intercourse with a person under the age of 17 years.[5] The allegations related to the appellant’s daughter. The jury convicted the appellant on count 4 (indecent assault) and count 8 (unlawful sexual intercourse with a person under the age of 17 years) and acquitted him of the remaining charges.

   [1]    A Judge of this Court granted permission to appeal on 13 June 2017.

   [2]    The information also charged the appellant with one count of aggravated indecent assault (count 9) but this charge did not proceed to trial.

   [3] Contrary to section 56 of the Criminal Law Consolidation Act 1935.

   [4] Contrary to section 49(1) of the Criminal Law Consolidation Act in the form it was in at the time of the alleged offending.  The section was amended in 2005 to refer to unlawful sexual intercourse with a person under the age of 14, but the maximum penalty of imprisonment for life remained unchanged.

   [5] Contrary to section 49(3) of the Criminal Law Consolidation Act.

3. On 10 April 2017, the appellant was sentenced. The sentencing Judge exercised the discretion available pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 to impose a single penalty of seven years imprisonment for the two offences. The Judge fixed a non-parole period of four years and six months. The sentence was not suspended and was backdated to commence on 22 September 2016 when the appellant was remanded in custody.

4. The appellant appeals against the sentence on the following grounds:

   1.   The length of both the sentence and non-parole period are manifestly excessive.

   2.   The Learned Sentencing Judge erred in his findings in relation to the occurrence of acts of uncharged conduct and therefore erred in imposing sentence on the basis of a background of generalised sexual offending having taken place.

   Circumstances of the offending

5. The complainant was born on 15 August 1994. The charges relate to a period of time between January 1998 and 31 December 2008. During that period the family lived at Port Lincoln, before moving to Yundi near McLaren Vale in 2002 and then Paling Hut on the Yorke Peninsula in 2008.

6. The first three counts of indecent assault were alleged to have been committed whilst the family resided at Port Lincoln. The complainant was between three and five years of age at the time. Counts 1 and 3 were both allegations that the appellant had rubbed the complainant’s vagina over her clothing. Count 2 was an allegation that the appellant had placed the complainant’s hand on his bare penis. The complainant also alleged that uncharged conduct, namely the appellant touching the complainant on the outside of her clothing on the breasts and vagina, occurred on this occasion. The appellant was found not guilty on each of the three charges.

7. Counts 4 to 7 related to a period of time when the family lived at Yundi. Count 4, a charge of indecent assault, was alleged to have been committed in 2002 when the complainant was approximately seven or eight years of age. The appellant was convicted on this charge. Whilst driving home from collecting takeaway from a restaurant in McLaren Vale, the appellant parked at the side of the road and rubbed the complainant’s vagina over her clothing. The complainant’s evidence in relation to this charge gained some support from evidence given by her mother that she recalled an occasion on which she questioned the appellant and the complainant as to why they were late returning after collecting takeaway.

8. Count 5 was an allegation that the appellant had penile vaginal sexual intercourse with the complainant when the complainant was approximately eight years of age. The complainant gave evidence that this was the first occasion of penile vaginal sexual intercourse. The complainant also alleged that uncharged acts of cunnilingus and rubbing of her vagina occurred on the same occasion.

9. Count 6 was alleged to be an act of cunnilingus committed in the shower at home. The complainant alleged that she had been held upside down and lost consciousness. The complainant gave evidence about other occasions when the appellant performed cunnilingus on her in the shower while residing at Yundi.

10. Count 7 was charged as an act of digital penetration of the complainant’s vagina. The complainant’s evidence in relation to count 7 was of an act of cunnilingus. She did not give evidence of an act of digital penetration having occurred on this occasion. The Judge directed the jury to acquit the appellant on count 7.

11. In addition to evidence of the charged acts, the complainant gave evidence of a number of uncharged sexual acts committed against her by the appellant while the family lived at Yundi. She alleged that the appellant engaged in digital and penile penetration of her vagina in her bedroom on multiple occasions. The complainant gave evidence of acts of cunnilingus and penile vaginal intercourse occurring in a shipping container located on the property, and of the appellant touching her vagina in the granny flat and whilst the appellant and complainant rode a quad motorbike together.  The complainant gave evidence of the accused having given her a “hickey” on her neck which, according to the complainant’s mother, she observed.  

12. The conduct the subject of count 8 was said to have occurred at the family house at Paling Hut when the complainant was around 14 years of age. The complainant said that the appellant had digitally penetrated her vagina when she was sleeping in the appellant’s bed while her mother was away. In an interview with police, the appellant admitted that there had been an occasion at Paling Hut when he may have inserted his finger into his daughter’s vagina. However, this was not the occasion particularised by the prosecution for count 8.  The appellant was convicted of the count 8 offence. The complainant also gave evidence of uncharged acts of cunnilingus and of attempted sexual intercourse, which the complainant was able to resist, having occurred on this occasion. It was alleged that this was the last time that the appellant engaged in sexual conduct with the complainant.

13. The complainant complained to the police in late November 2013. The appellant was arrested in December 2013.

    The appellant’s personal circumstances

14. At the time of sentence, the appellant was 69 years of age. He was aged in his mid-fifties to early sixties during the period of the offending. He has no prior convictions for sexual offending. However in 1996 he was sentenced to imprisonment for four years with a non-parole period of 18 months for nine counts of receiving stolen property and one count of false pretences.

15. The appellant had a difficult upbringing. He was physically abused by his father. He struggled at school and after leaving school at 13, the appellant worked as an abalone diver, a marine salvage worker and a builder.

16. The appellant has been married twice. In 1997, he married the complainant’s mother with whom he had two children; the complainant and her younger brother. The marriage ended in 2010. The appellant had three sons from his previous marriage, one of whom died in a motor vehicle accident in 2006.

17. The appellant suffers from poor health. In 1989, he suffered a stroke and subsequently developed an adjustment disorder with depressed mood which was exacerbated by the death of his son. The appellant developed a drinking problem and has continued to take antidepressant medication. He suffers from curvature of the spine, issues with balance as a result of partial amputation of his foot, erectile dysfunction, a shoulder injury and cardiovascular problems. The Judge took into account that the appellant’s health issues may worsen whilst in custody.

18. The Judge noted in his remarks that the appellant has not displayed any sign of remorse or contrition for his offending.

    The Judge’s approach to sentence

19. In his sentencing remarks, the Judge summarised the evidence given by the complainant at trial in relation to the charged and uncharged allegations. His Honour made findings with respect to the factual basis on which he relied for sentencing.

    It is necessary to say a few words about the factual basis upon which I must sentence you.  It is a well-established principle that a judge must sentence an offender convicted by a jury on a factual basis consistent with the jury's verdict of which the judge is satisfied beyond reasonable doubt.  It is also clear as a matter of legal principle and fairness that you are regarded by the law as innocent of the charges in respect of which you were acquitted.  Accordingly, I must and do ignore the charges of which you were found not guilty.  My obligation is to sentence you only in relation to counts 4 and 8. 

    However, it does not follow that I cannot have regard to the uncharged acts described by E in her evidence.  The jury's findings in relation to the uncharged acts are unknown.  The jury may have been satisfied that you committed all or some of those acts, but entertained a doubt about your guilt in relation to the charged offences of which you were acquitted.  Accordingly, it is necessary for me to make my own findings in relation to the uncharged acts.  It may be that the uncharged acts described by E did not occur as frequently as she said.  However, I am satisfied beyond reasonable doubt that you did have a sexual relationship with E over a period of years, in particular at Yundi which involved you fondling her breasts and vagina and penetrating her vagina with your fingers and penis.

    In the main I found E to be an impressive witness.  I believe that she gave a substantially truthful account of the uncharged acts.

    In summary, I am satisfied that counts 4 and 8 were committed against a background of generalised sexual offending against her.  However, it should be clearly understood that you are not to be punished for uncharged acts.  As a matter of legal principle, that course of conduct is relevant only to the extent that it defeats the contention that counts 4 and [8] were isolated crimes that were committed impulsively.  In other words, it eliminates any scope for leniency that might otherwise have been afforded to you on such grounds. The approach that I have taken accords with the decision of the Court of Criminal Appeal in The Queen v Macbeth [2008] SASC 71.

20. The Judge reached the view that he could find no good reason to suspend the sentence and that it would not be appropriate to impose a home detention order.

    Ground 1 – Manifest excess of head sentence and non-parole period

21. The appellant contends that the head sentence and the non-parole period imposed by the Judge are manifestly excessive. It was submitted that the sentence imposed by the Judge is more consistent with a sentence for multiple offences occurring over an extended period, despite the appellant having been convicted on only two counts committed approximately seven years apart.

22. Counsel submitted that the language used by the Judge, in finding that the appellant had a penetrative sexual relationship with the complainant over a period of years, suggested that his Honour applied the sentencing standard referred to in R v D.[6] The appellant contends that the offending could not properly be characterised as involving multiple offences committed over an extended period and that the imposition of a sentence in accordance with the R v D standard was therefore inappropriate. The appellant ultimately contends that the sentence imposed was manifestly excessive, given the appellant’s age, health and other circumstances.

    [6] [1997] SASC 6350; (1997) 69 SASR 413.

23. In Hili v The Queen,[7] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said this.

    As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”.

    Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.

    Factors relevant to a question of manifest excess are:[8] the maximum sentence prescribed by law; the standards of sentencing customarily observed for offences of the kind in question; the seriousness of the offence committed when compared with other examples of the offence in question; and the personal circumstances of the offender.

    [7] [2010] HCA 45; (2010) 242 CLR 520 at [59].

    [8]    The Queen v Morse (1979) 23 SASR 98 at 99 (King CJ).

24. Count 4 was an indecent assault comprised of rubbing the complainant’s vagina over clothing when she was seven or eight.  In 2002 and given that the victim was under 12, the offence carried a maximum penalty of imprisonment for 10 years.  Count 8 was an act of unlawful sexual intercourse comprised of digital vaginal penetration when the complainant was about 14.  In 2008, the maximum penalty for an offence of unlawful sexual intercourse with a person under 17 was imprisonment for 10 years. 

25. Ignoring for the present the complaint in ground 2, the two offences were committed against a background of serious sexual conduct as found and described by the Judge.  It followed, as the Judge observed, that the two crimes could not be treated as isolated and as having been committed impulsively.  Rather, they were elements of an ongoing course of similar, if not more serious, conduct.  As such, there was no scope for leniency on the basis that the offending was isolated.  Further, the two offences were committed years apart, reducing if not eliminating any scope for concurrency when arriving at a single penalty for both offences. 

26. The offending occurred in the context and under the cover of a father-daughter relationship.  Such a relationship is characterised by power, authority and influence on the one hand and trust (at least initially) and vulnerability on the other.  The offending involved a gross breach of trust for which the appellant still has shown no remorse or contrition.  Furthermore, general deterrence is a very important consideration when sentencing for offences of this nature. 

27. In R v D,[9] Doyle CJ made the following observations which have repeatedly been endorsed in later decisions of this Court.

    It is not necessary to repeat what the court has said so often in the past about such offences. I merely add this. 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.

    The former Chief Justice went on to outline the following sentencing guidance.[10]

    In my opinion offences involving unlawful sexual intercourse with children under 12 years of age, when there are multiple offences committed over a period of time, should attract as a starting point a head sentence of about 12 years imprisonment. In saying that I refer to a sentence imposed under s 74(7) of the Act and to a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA). That starting point would be subject to reduction on account of a plea of guilty, co-operation with the police, genuine contrition and so on. It is impossible to be precise in these matters, and I do not wish to be taken as suggesting a precise figure. In an appropriate case the starting point might be higher or lower.

    When the child in question is over 12 years of age, in my opinion the starting point in such cases should be a head sentence of about 10 years imprisonment.

    [9] [1997] SASC 6350; (1997) 69 SASR 413 at 423.

    [10]   At 424.

1. The appellant is correct; this is not a case that should attract the guidance outlined in R v D.  The course of conduct relied on by the Judge in this case is largely uncharged and the appellant has been convicted of only two of the charged offences.  However, the Judge did not indicate in any way that he was treating this case as falling within the R v D category and the head sentence of imprisonment for seven years does not suggest that he did.  Nevertheless, the more general observations by Doyle CJ set out above are apposite.

2. In considering the question of manifest excess, the appellant’s very favourable personal circumstances are an important consideration.  Nevertheless, a starting point of seven years in the absence of a plea of guilty and given the nature of the two offences, the consequences of the offending and the lack of any demonstrated contrition was within the range available to the Judge.  The head sentence is not manifestly excessive nor is the non-parole period notwithstanding that, at just under 65 per cent of the head sentence, it might, given the appellant’s personal circumstances, be seen as towards the upper end of the available range.

   Ground 2 – The Judge’s approach to the uncharged conduct

3. The second ground of appeal, and the appellant’s primary contention, is that the Judge’s findings as to the nature and extent of the acts of uncharged sexual conduct by the appellant were in error.  Accordingly, his Honour erred by sentencing on the basis of a background of penetrative sexual conduct.

4. At the time of sentence and on appeal, counsel for the appellant conceded that it was open to the sentencing Judge to find that there had been some background of sexual contact.  However the appellant contends that it was not open to the Judge to find that the appellant had a sexual relationship with the complainant over a period of years and, in particular, that it involved penetration of the complainant’s vagina with his fingers and penis.

5. Counsel for the appellant submitted that the Judge could not be satisfied beyond reasonable doubt that the appellant had a penetrative sexual relationship with the complainant over a period of years because the evidence given by the complainant as to the alleged uncharged acts was in general terms and lacked specifics. Counsel referred to the Judge’s finding that the complainant may have overstated the frequency of the acts, despite his overall finding that the complainant gave a substantially truthful account of the uncharged acts.

6. The appellant further contends that it was not open to the Judge to find that there was a penetrative sexual relationship at Yundi given that the jury acquitted the appellant of all charges involving acts of intercourse at Yundi. Counsel submitted that the Judge’s findings ought to have been consistent with the jury’s likely findings concerning the uncharged allegations bearing in mind the acquittals.

7. Counsel for the respondent submitted that there was no inconsistency between the acquittals on the more serious charges and the Judge’s finding that the proved charges were not isolated. In any event, it was not possible to determine from the verdicts any view the jury may have had as to the uncharged allegations. The respondent contends that Judge used his findings as to the background of penetrative sexual conduct appropriately by limiting the leniency his Honour might otherwise have extended had the offences for which the appellant was convicted been isolated.

8. I do not understand the appellant to dispute that there was evidence from the complainant which, considered in the context of evidence given by her mother, was probative of there having been an ongoing penetrative sexual relationship at Yundi.  The appellant’s complaint is that it was not open on the evidence for the Judge to be so satisfied beyond reasonable doubt.  However, the Judge heard the complainant’s evidence with all the advantages that entails for his Honour’s assessment of her credibility and reliability.  The appellant did not give evidence, although the Judge had before him the appellant’s records of interview played during the trial in which he denied all such charged and uncharged conduct apart from the one admission referred to earlier.

9. The situation confronting the Judge was not dissimilar to that which arose at trial in R v MacBeth[11] and a similar complaint about the Judge’s approach to sentencing was pressed by the appellant in that case.  Doyle CJ (with whose reasons Bleby and Gray JJ agreed) in rejecting the appeal explained as follows.[12]

   [11] [2008] SASC 71.

   [12]   At [100]-[107].

   Mr Griffin submits that it was not open to the Judge to sentence on the factual basis on which he sentenced Mr MacBeth.  He relies on the well established principle that a judge cannot sentence on a basis inconsistent with the verdicts of the jury.

   Mr Griffin further submits that the Judge’s finding that the offences were committed in the context of an ongoing sexual relationship is inconsistent with the jury verdicts, and accordingly was not open to the Judge.  He submits that the not guilty verdicts meant that the Judge should ignore the allegations the subject of those counts.  The Judge did so.  But he submits further that the jury must have rejected DP’s evidence of uncharged acts, because if they had accepted that evidence they would have convicted Mr MacBeth on the counts on which they acquitted him.

   I do not accept this submission.  My conclusion that the guilty verdicts on count 4 and on count 5 were reasonably open to the jury despite the not guilty verdicts on the other counts rests on the hypothesis that the jury might reasonably and rationally have decided that they should acquit on all but count 4 and count 5.  That conclusion rests on the circumstances of the counts on which the jury returned not guilty verdicts.  It does not involve a conclusion that the jury did not accept DP’s evidence about the uncharged acts.

   Acceptance of the verdicts of the jury as a whole does not lead to the conclusion that the jury must have rejected DP’s evidence about the uncharged acts.

   To the contrary, the jury verdicts are consistent with substantial acceptance of DP’s evidence as to the uncharged acts.  It was open to the Judge to make the finding that DP’s evidence about the uncharged acts was substantially truthful, without undermining the jury verdicts and without making a finding inconsistent with those verdicts.

   In short, it was open to the Judge to make the findings of fact that he made.

   Mr Griffin further submits that the result of the Judge’s finding is that Mr MacBeth has been found to have committed unspecified acts on unspecified occasions.  That is correct.  But just as it was open to the jury to have regard to the evidence of the uncharged acts as circumstantial evidence supporting a finding of guilt, so it was open to the Judge to find that the same evidence led to a conclusion that Mr MacBeth had committed the uncharged acts described by DP.  The result of this is to deny Mr MacBeth the benefit of a claim to be sentenced on the basis that the offences were isolated unlawful acts.  On this point I agree generally with the observations by Mullighan J in R v Liddy (No. 2) [2002] SASC 306; (2002) 84 SASR 231 at [67]–[69].

   Not only were the findings that the Judge made open to be made as a matter of law, but those findings were also open to be made as a matter of fact.  Assuming that the findings are not inconsistent with the jury verdicts, it cannot be said that it was not open to the Judge to reach the conclusion that he reached.

   The same reasoning applies in this case.  The findings made by the Judge were not inconsistent with the jury verdicts and were open to his Honour as a matter of law and fact.

   Conclusion

10. I would dismiss the appeal.

    DOYLE J.         

11. I agree with the reasons of Nicholson J.  I would dismiss the appeal.