R v M, REM - [2008] SASC 348

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v M, REM
[2008] SASC 348
Judgment of The Court of Criminal Appeal
(The Honourable Justice Anderson, The Honourable Justice White and The Honourable Justice Kelly)
11 December 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Prosecution appeal against sentence – respondent pleaded guilty to 13 counts of indecent assault and two counts of unlawful sexual intercourse – offending occurred over a period of 30 years as part of several courses of conduct – victims were respondent’s daughter, three stepsons and three sons of a family friend – victims aged from seven to 13 at times of offending – respondent sentenced to seven years imprisonment with a non-parole period of four years.

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE
Whether sentencing Judge erred by applying the totality principle before taking account of other matters relevant to sentence.
Held: no error shown – Judge did not apply totality principle – totality principle inapplicable when a single sentence is imposed under Criminal Law (Sentencing) Act 1988 s 18A without attributing a notional sentence for each offence.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
Whether sentence manifestly inadequate – consideration of factors relevant to sentence – whether permission to appeal should be granted.
Held: Appeal allowed – sentence manifestly inadequate – offending involved seven victims and caused profound harm to each – permission to appeal granted in order to maintain proper standard of sentencing for multiple offences of sexual abuse involving numerous victims – respondent re-sentenced to nine years imprisonment, with a non-parole period of six years.
Criminal Law Consolidation Act 1935 (SA) s 5, s 49, s 56; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A; Criminal Law Consolidation Act Amendment Act 1985 (SA) s 3, referred to.
Everett v The Queen (1994) 181 CLR 295; Shepperbottom v The Queen (2001) 212 LSJS 486; R v Bennett [2005] SASC 55; R v B, RWK (2005) 91 SASR 200; R v Osenkowski (1982) 30 SASR 212, applied.
R v LLK (2003) 231 LSJS 458, discussed.
R v Place (2002) 81 SASR 395; Postiglione v The Queen (1997) 189 CLR 295; R v Major (1988) 70 SASR 488; R v Waugh (2005) 93 SASR 274; R v Van Der Horst [2006] SASC 243; R v Califano (2002) 222 LSJS 460, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"totality", "manifestly inadequate"

R v M, REM
[2008] SASC 348
Court of Criminal Appeal: Anderson, White & Kelly JJ
ANDERSON J.

I would grant permission to the Director to appeal against sentence. I would allow the appeal and substitute a sentence of imprisonment of 9 years with a non-parole period of 6 years. I agree with the orders proposed by White J and with his reasons.
WHITE J.
The Director of Public Prosecutions seeks permission to appeal against a sentence imposed in the District Court for 13 offences of indecent assault[1] and two offences of unlawful sexual intercourse.[2] Each of the offences, which were committed between 1973 and 2003, involved the sexual abuse of children.
[1] Criminal Law Consolidation Act 1935 (SA) s 56.
[2] Criminal Law Consolidation Act 1935 (SA) s 49(1).
The Judge imposed a single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) of imprisonment for seven years. This figure was fixed after the Judge reduced his starting point of ten years by three years on account of the respondent’s cooperation with the police investigation and his pleas of guilty. The Judge then fixed a non-parole period of four years.
The Director contends that the Judge erred in principle in his application of the totality principle and that the sentence imposed is manifestly inadequate. He submits that this case is one of the “rare and exceptional”[3] cases in which permission to appeal should be granted to the Crown so that this Court can maintain adequate standards of punishment for offences of this kind.
[3] Everettv The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299-300; Shepperbottom v The Queen [2001] SASC 31; (2001) 212 LSJS 486.
For the reasons which follow, I am satisfied that permission should be granted to the Director to appeal, that the appeal should be allowed and that the sentence imposed on the respondent should be increased.
The Circumstances of the Offences
The respondent’s offending involved the sexual abuse of seven children, one of whom is his daughter, three of whom are his stepsons, and three of whom are the sons of a family friend. All involved a gross abuse of a position of trust.
The three offences involving the daughter were offences of indecent assault committed on a single occasion in either 1973 or 1974 when she was seven or eight years old. The respondent entered his daughter’s room and made her rub his penis, later fondled her vagina and, later again, penetrated her vagina with his finger. Although the latter conduct would now amount to unlawful sexual intercourse, in 1973 it comprised an indecent assault.[4]
[4] The definition of ‘sexual intercourse’ in s 5 of the Criminal Law Consolidation Act 1935 (SA) was amended by the Criminal Law Consolidation Act Amendment Act 1985 (SA) s 3.
The next group of offences involved the respondent’s stepsons, the children of his present wife. Some of the offences occurred while the respondent and the mother were establishing their relationship, and others while they were living together in one house. The respondent’s sexual abuse continued over a long period and the times of the offences involving the three boys overlapped.
Four of the offences involved the stepson, E. In 1979 the respondent was working in a music shop. One of his duties was teaching piano playing. E, who was then 10 years old, was one of his pupils. During the course of a lesson the respondent moved his hand up E’s thigh until he touched his genitals on the outside of his underpants (indecent assault). A few lessons later, the respondent masturbated E underneath his clothing (indecent assault). In 1979 or 1980 when E was ten or 11 years old, at the home which they shared the respondent masturbated E, and then made E masturbate him. The respondent then knelt in front of E and performed fellatio on him (unlawful sexual intercourse). About one year later the respondent masturbated E while they watched television together (indecent assault).
In 1980 when his stepson M was six years old, the respondent put his hands down M’s pants and fondled his penis (indecent assault). In either 1983 or 1984, when M was nine or ten years old, the respondent fondled his penis and then performed an act of fellatio upon him (unlawful sexual intercourse). Next, in 1986 when M was about 12 years old, the respondent pulled his pants down, fondled his penis (indecent assault) and asked if M wished him to perform an act of fellatio.
The third stepson, A, was the third of the stepsons to be a victim of the respondent’s offences. On two separate occasions in 1984 when A was 13 years old, the respondent stroked and fondled his penis for about half an hour, initially over the top of his underpants and later in direct contact with his skin (indecent assaults).
The third group of offences involved the children of a family friend at whose premises the respondent was then living. This group of offending occurred after a long interval had elapsed between the offending involving the respondent’s daughter and stepsons.
In 2002 or 2003 J was nine or ten years old. He entered the respondent’s caravan which was parked in the backyard of his (J’s) mother’s home. The respondent pulled J’s pants down and stroked his penis (indecent assault). In the same year, when the victim, G, was nine or ten years old the respondent masturbated him (indecent assault). Finally, in 2002 or 2003 when the victim, C, was ten or 11 years old he too was masturbated by the respondent (indecent assault).
The respondent pleaded guilty to each of these offences and made full admissions to the police when interviewed about them. He acknowledged that none of the offences involving each child was an isolated act with that child. He admitted that the conduct comprising each of the offences was of a kind which he had engaged in with each child on several occasions and in some instances as part of a continuing course of conduct. The material before the Judge indicated that the respondent’s conduct involving the daughter extended over a period of two or three years; with E over a period of about three years; with M over a period of about three years; with A over a period of about three years; with J over a period of about one year; with G over a period of about one year; and with C over a period of about three years. Of course, the respondent was not to be punished for the uncharged conduct, but nor was he entitled to any reduction on the basis that the offences were isolated or had not been repeated.
The maximum penalty for each of the two offences of unlawful sexual intercourse is life imprisonment. The maximum penalty for the offences of indecent assault has increased over the years and has varied according to the circumstances in which they were committed. The Director acknowledged that it was the maximum penalties which were in force at the time each offence was committed which were to be applied. The maximum penalty for the three offences of indecent assault involving the daughter, one of the offences involving the stepson M and three of the offences involving the stepson C was imprisonment for five years. The maximum penalty for the two offences of incident assault involving the stepson A and for one of the offences of indecent assault involving the stepson M was imprisonment for eight years. The maximum penalty for each of the indecent assaults in the third group of offences was ten years imprisonment.
The course of the respondent’s offending indicates that he persistently preferred pursuit of his own sexual gratification over the interests of the children for whom he was responsible. He had numerous opportunities to reflect on both the harm he was causing to the children and his own wrongdoing. It does not seem that he refrained from any of the conduct of his own volition. In each case it was the conduct of the child, or a change in the circumstances of the respondent’s accommodation, which brought his conduct to an end.
The respondent’s conduct has had distressing effects on his victims. The sentencing Judge described the victim impact statements as giving a harrowing insight into the devastation which the abuse has caused. This is an accurate description. The impacts include the fracturing of family relationships and the continuing effects on the relationships of the victims with their partners and with their own children.
The Respondent’s Personal Circumstances
The respondent is now aged 68 but was 33 when his offending commenced. He reported having been sexually abused himself when he was a boy. The incidence of those who have been victims of sexual abuse offending in similar ways themselves has been noted in other authorities. That is one reason why general deterrence is an important feature of sentencing for this kind of offending.
The respondent’s first marriage survived for 15 years. Shortly after that relationship ended, the respondent commenced his relationship with his present wife, the mother of his stepsons. That relationship continues to the present day, although there was a separation of approximately six months in the early 1990’s when the wife learnt of the respondent’s sexual abuse of her sons. The fact that their mother has remained with the respondent has been, and continues to be, a cause of considerable distress to the stepsons.
There was an element of calculation and premeditation to the respondent’s conduct. He told an assessing psychologist that the three sons of his second wife were one of the reasons he was attracted to her.
The respondent committed offences of indecent acts with two of his grandchildren in Victoria in late 2003, ie, after the last of the subject offences. In June 2005 he was sentenced in Victoria to imprisonment for 18 months for these two offences.
When interviewed by the Victorian police concerning these offences, the appellant made admissions concerning the subject offending. This led to him being interviewed by the South Australian Police while still in custody in Victoria. During the course of that interview he made full admissions concerning his offending in South Australia. This included admissions of offending which had not been reported to the South Australian Police at that time. It is appropriate to say that the respondent cooperated fully with the South Australian Police in their investigation, and did not at that time, or subsequently, seek to diminish the extent of his conduct.
Since his discharge from custody in Victoria, the respondent has taken steps to avoid further offending. Those steps comprise principally the confining of himself to his own house and ensuring that he leaves the house only when in company with his wife.
A report from the respondent’s general practitioner indicates that he suffers from diabetes, high cholesterol and angina. Without treatment these conditions are life threatening. They have however been managed adequately by medication and there is no reason to suppose that they will not be managed in a similar way while he is in custody.
The assessing psychologist considered that the respondent satisfies the criteria for a diagnosis of paedophilia and that he continues to be at risk of re-offending. That risk is regarded as high if the respondent is ever again placed in a situation in which he has regular unsupervised contact with young boys.
The Approach of the Sentencing Judge
The Judge referred to the extreme breaches of trust which the respondent’s conduct involved, to the numerous opportunities which he had had to reflect upon his behaviour, to the paramount consideration which must be given to deterrence in offences of this kind in order to protect children from sexual predators,[5] and to the credit which was appropriate having regard to the respondent’s pleas of guilty and cooperation with the police. The Judge then said:
Each of the counts of indecent assault, taking into account the variation in maximum penalties over time, would, in my opinion, attract a sentence of about 18 months imprisonment, and each count of unlawful sexual intercourse would, in the usual course, attract a sentence of between two and three years, having regard to the very high maximum penalties for that offence.
However, when viewed in totality, the imposition of such penalties would result in a completely crushing sentence. Having regard to the fact that in each case your offending was a course of conduct and each count is representative of that, the number of counts is somewhat academic, in any event.
I will fix one penalty pursuant to s 18A of the Sentencing Act to represent what I consider to be the overall criminality of your behaviour.
I start with a sentence of 10 years imprisonment. I reduce that to seven years on account of your co-operation with the police and your pleas of guilty.
I fix a non-parole period of four years.
[5] Criminal Law (Sentencing) Act 1988 s 10(4).
The Alleged Errors of Principle
The Director submitted that the passages just quoted reveal an error of principle in the Judge’s approach. He contended first that it was wrong for the Judge to have approached his sentencing task with the view that “the number of counts is somewhat academic”. The number was not academic because the sentencing had to reflect the criminality of all 15 offences, involving as it did seven different children.
Secondly, the Director submitted that the Judge had erred in his application of the totality principle. The Director submitted that the error lay in the Judge’s application of the totality principle to reduce the sentence which he would otherwise have imposed before he had taken account of all other matters relevant to sentence and, in particular, before he had taken account of the reduction which was appropriate on account of the respondent’s pleas of guilty and co-operation with the police.
In my opinion, the sentencing Judge did not make either of the two errors of principle imputed to him.
It is convenient to deal with the second of the matters raised by the Director first. It is clear enough that the totality principle is to be applied only after all circumstances of mitigation, including reduction on account of pleas of guilty, have been taken into account. As was pointed out by the Chief Justice in R v LLK,[6] the totality principle is to be applied at the final stage of the sentencing process, and should be deferred until then. That is because the totality principle involves the reduction of a sentence which would otherwise be appropriate because of its effect on the offender.[7] The totality principle may have particular application when a judge sentencing for multiple offending has adopted the approach of accumulating a number of individual sentences.[8]
[6] [2003] SASC 431; (2003) 231 LSJS 458.
[7] Ibid at [16], 460. See also R v Place [2002] SASC 101 at [90], [98]; (2002) 81 SASR 395 at 426-7, 428‑9.
[8] Postiglione v The Queen (1997) 189 CLR 295 at 307-8.
In my respectful opinion, the Judge did not mis-apply the totality principle because he did not apply it at all. When the Judge used the word “totality” in the passage impugned by the Director, he was not invoking the totality principle. Instead, he was giving reasons for not imposing individual sentences for each offence, and for not constructing a single sentence under s 18A of the CLSA by first attributing a notional sentence to each offence.[9] The Judge recognised that if he did adopt either of these approaches, he would inevitably have to apply the totality principle. Instead of adopting that course, the Judge chose to construct a single sentence under s 18A by selecting a single term of imprisonment as a starting point. This was an acceptable alternative approach.[10] The Judge then mentioned his starting point of imprisonment for 10 years. He made one reduction only from that starting point, ie, a reduction of three years on account of the respondent’s pleas of guilty and co-operation with the police. The starting point of 10 years was not reached after a reduction for totality. It was simply the period of imprisonment which the Judge considered was appropriate, having regard to the overall criminality of the respondent’s conduct.
[9] The latter approach was outlined in R v Major (1988) 70 SASR 488 by the Chief Justice at 490, and by Olsson J at 497.
[10] R v LLK [2003] SASC 431 at [14]; (2003) 231 LSJS 458 of 460; R v Waugh [2005] SASC 470 at [42]-[44]; (2005) 93 SASR 274 at 284; R v Van Der Horst [2006] SASC 243 at [81]-[87].
Indeed, had the Judge invoked the totality principle in the circumstances of the present case, he would have been in error. The totality principle has no part to play when a judge imposes a single sentence under s 18A, which single sentence is derived without the attribution of a notional sentence for each offence for which the sentence is being imposed. That is the approach which the Judge adopted in this case. Doyle CJ spoke of the inapplicability of the totality principle in such cases in R v Bennett,[11] when he said:
The appellant invokes the principle of totality. In my opinion that has no part to play in this case. It cannot be said that the sentence arrived at is a crushing sentence, and of a kind that requires a further reduction on account of the totality principle. The totality principle cannot be invoked, as it sometimes is by counsel, as a routine basis for reducing an otherwise appropriate sentence. The concept of totality has little or no part to play when a sentence is imposed, exercising the powers conferred by s18A and the judge considers it appropriate to determine that sentence without attributing a notional sentence to each offence and considering whether such sentences should be cumulative or concurrent …
In arriving at a sentence without determining the sentence that each offence will attract separately, the judge will necessarily have regard to the total period of imprisonment that is appropriate. No further reduction under the totality principles should usually be called for.[12] [Citations omitted].
[11] [2005] SASC 55.
[12] Ibid at [15]-[16].

Similarly, in R v B, RWK[13] Vanstone J said of the use of s 18A in that case:
The judge chose not to ascribe certain sentences, often referred to as “notional sentences” to each of the individual sentences under consideration. … In my view, it is implicit in the selection by the judge of a sentence of seven years imprisonment that he took into account the notion of totality. After all, it is the accumulation of separate sentences which can give rise to the vice to which the totality principle is directed. When such a process is not followed and specific punishments are not “totted up to make a total”, the “synthesis” of factors should result in an appropriate sentence.[14] [Emphasis in original].
[13] [2005] SASC 84; (2005) 91 SASR 200.
[14] Ibid at [24], 204-5.
As to the first error imputed to the Judge, my opinion is that when the Judge said that the number of counts was “somewhat academic”, he was simply indicating that because each offence could not be regarded as having been committed in isolation, an accumulation of the individual sentences which would be appropriate would result in a sentence which would be so high that it would, inevitably, have to be reduced to avoid a crushing effect. This was, in effect, a statement of the obvious. It is not readily to be supposed, in my opinion, that the Judge considered that the number of sentences for which the respondent was to be sentenced was academic.
The Inadequacy of the Sentence
The respondent’s conduct was undoubtedly serious. As noted earlier, it involved in each case a breach of the trust reposed in the respondent when acting as a parent, or in loco parentis, or as a family friend. The respondent’s relationship with each of his victims was such that they were entitled to look to him for protection. Instead, they received abuse.
Mr Mead, for the respondent, emphasised the matters which stood to the respondent’s credit. These included his frank admissions when interviewed by the police, his co-operation with the police and his pleas of guilty. Mr Mead also emphasised the significant impact which a lengthy sentence of imprisonment will have on the respondent having regard to his age, his ill health and his determination, since his release from custody in Victoria, to avoid further offending. I agree that these are important relevant considerations.
An appropriate sentence for this kind of offending must reflect a number of considerations in addition to those which are personal to the offender. These include the outrage and revulsion which such offences cause, the breach of trust involved, the number of victims, the harm to those victims, and the need for the courts, by the sentences which they impose, to do what they can to provide protection for children from offences of this kind. The sentence imposed must operate as a deterrent both to the individual offender and to those who may be minded in the future to engage in conduct of this kind.
Of the considerations which I have mentioned, one in particular had to be prominent in the sentencing in the present case. That is the number of victims of the appellant’s offending. His conduct has brought enduring harm, and in some cases misery, to seven people. The victim impact statements suggest that the harm to the victims has been both profound and prolonged. Three of the victims report difficulties in their relationships with their spouses or partners, and two report difficulties in their relationships with their own children. The victims all relate these difficulties to the respondent’s conduct. It can be said that the respondent’s offences are having consequences affecting not only the children he abused, but also the next generation of children. Sentences for this kind of offending should, in my opinion, reflect the consequences which the offending has on the victims. That is particularly so as persons committing the present kind of offences choose to pursue their own gratification without regard to, or respect for, the rights, needs and sensitivities of those who have a limited capacity to protect themselves.
It cannot be said that the Judge overlooked the considerations which I have mentioned. He referred to each of them, but in my opinion, the sentence imposed by the Judge fails to reflect, in particular, the fact that the respondent’s offending involved seven victims and has caused profound harm to each of them. At best, for the respondent, his offending involved three separate courses of conduct, one with his daughter, one with his stepsons and the third with the sons of the family friend. But on another view, it involved seven separate courses of conduct, each involving a different victim and each resulting in profound harm to that victim.
In my opinion, the multiple number of victims in this case means that the starting point for an appropriate sentence should have been imprisonment for not less than 13 years. Using the same reduction in broad terms as was allowed by the sentencing Judge to reflect the respondent’s pleas of guilty and co-operation, that starting point should be reduced to nine years. A non‑parole period of six years would be appropriate. The difference between this sentence and that imposed by the Judge is sufficiently large that the sentence can be described as manifestly inadequate.
However, as was pointed out by Mr Mead, a conclusion that a higher sentence should have been imposed does not necessarily mean that permission to appeal should be granted and the appeal allowed. It has been said that permission to the prosecution to appeal against a sentence should be granted only in a “rare and exceptional” case.[15] This Court should allow a prosecution appeal to be brought only for the purpose of establishing a matter of principle, or to allow this Court to maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and, occasionally, to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.[16] Even when the court does consider that a sentence is manifestly inadequate, it is not always necessary for permission to appeal to be granted and the appeal to be allowed. It is sometimes sufficient for the court to indicate that the particular sentence is too low, without granting permission to appeal.[17]
[15] Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299-300.
[16] R v Osenkowski (1982) 30 SASR 212 at 213; R v Shepperbottom [2001] SASC 31 at [4]; (2001) 212 LSJS 486 at 486.
[17] Everett v The Queen (1994) 181 CLR 295; R v Califano [2002] SASC 320; (2002) 222 LSJS 460.
I recognise the force of the submissions in this respect made by Mr Mead. The authorities to which he has referred reflect sound principle. However, in my opinion, it is appropriate to grant permission to appeal, and to allow the appeal, in this case. It is necessary to do so in order that a proper standard of sentencing for multiple offences of sexual abuse involving numerous victims is maintained. As I have said, it is that particular feature which, in my opinion, is not reflected in the sentence imposed by the Judge.
Conclusion
For the reasons given above, I would grant permission to the Director to appeal against the sentence in this case. I would allow the appeal and set aside the sentence imposed in the District Court. I would substitute, under s 18A of the CLSA, a sentence of imprisonment for nine years and I would fix a non-parole period of six years. I would direct that both the sentence and the non-parole period should be taken to have commenced on 18 September 2008, being the date upon which the respondent was remanded in custody.
KELLY J.
I agree with the orders proposed by White J and with his reasons.