R v Mittiga
[2010] SASCFC 67
•3 December 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MITTIGA
[2010] SASCFC 67
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Peek)
3 December 2010
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - OTHER MATTERS
Appellant appeals against sentence of imprisonment imposed by District Court - permission to appeal granted in Supreme Court - appellant found guilty by judge alone of 3 counts of indecent assault, 2 counts of unlawful sexual intercourse, 2 counts of aggravated indecent assault, 1 count of gross indecency - counts 6 to 8 committed after appellant arrested and while on bail for counts 1 to 5 - offences committed when appellant was 80 to 82 years of age - appellant's wife passed away shortly before offending commenced - offences committed against three young sisters while appellant was in position of trust - appellant sentenced when 83 years of age - sentencing judge applied s 18A Criminal Law (Sentencing) Act 1988 - counts 1 to 5 treated as course of conduct - nominal sentence and non-parole period fixed for counts 1 to 5 - counts 6 to 8 treated as later course of conduct and made cumulative - nominal sentence and non-parole period fixed for counts 6 to 8 - reduction made for totality - head sentence imposed of 15 years with non-parole period of 11 years.
Whether sentencing judge erred in his application of s 18A - whether sentencing judge gave adequate weight to appellant's personal circumstances - whether sentence manifestly excessive.
Held: Appeal allowed for the limited purpose of correcting the form of the sentence - sentencing judge erred in his application of s 18A - sentence not manifestly excessive.
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - ELDERLY OFFENDER
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
Criminal Law (Sentencing) Act 1988 s 10(1)(i), s 10(1)(o), s 18A and s 32, referred to.
R v Liddy (No 2) (2002) 84 SASR 231; R v D (1997) 69 SASR 413; R v Ellis (2010) 107 SASR 94, applied.
Gulyas v Western Australia (2007) 178 A Crim R 539; R v Randall-Smith and Davi (2008) 100 SASR 326, discussed.
R v Mittiga (No 2) [2010] SADC 68; R v Hunter (1984) 36 SASR 101; R v Nylander (2003) 228 LSJS 24, considered.
R v MITTIGA
[2010] SASCFC 67
DOYLE CJ: I agree with Anderson J, and for the reasons that he gives, that as a matter of substance the sentencing Judge has not erred. I also agree with him that it is appropriate to allow the appeal, but only for the limited purpose of correcting the form in which the sentence is expressed.
For those reasons it is appropriate to allow the appeal, to set aside the sentence imposed by the District Court, on counts 1 to 5 to impose a single sentence of imprisonment for 11 years, on counts 6 to 8 to impose a single sentence of imprisonment for 4 years, that sentence to be cumulative upon the first sentence, and in relation to the combined periods of imprisonment to fix a single non-parole period of 11 years, the first head sentence and the non-parole period to commence from 8 July 2010.
ANDERSON J.
Introduction
The appellant appeals against the sentence imposed on him in the District Court on 6 August 2010. Permission to appeal was granted on 25 October 2010.
The appellant was charged with three counts of indecent assault, one count of unlawful sexual intercourse with a person under 12, one count of unlawful sexual intercourse with a person under 17, two counts of aggravated indecent assault, and one count of gross indecency. The charges involved victims T, L and S who are sisters. All eight counts were tried together. Counts 6 to 8 were committed in mid-2009 while the appellant was on bail in respect of the offending subject of counts 1 to 5 which were committed between May 2007 and June 2008. At the time of the offending S was aged 9 to 10, T was 16 and L was 14, nearly 15.
The appellant pleaded not guilty to all counts and elected to be tried by a judge without a jury. He was found guilty of all charges.
The sentencing judge imposed a head sentence of 15 years with a non-parole period of 11 years. I will discuss the sentencing approach taken later in these reasons.
The issues on appeal are whether the sentencing judge erred in the method used to calculate the sentence and whether the sentence is manifestly excessive. The appellant is now 83 years old. He was therefore 82 when this offending commenced. His age is one of the main factors relevant in this appeal.
Background
It is convenient to set out the factual background as found by the sentencing judge in R v Mittiga (No. 2) [2010] SADC 68. These facts were not challenged on appeal.
At [38]-[39] his Honour said:
… [the] three complainants were sisters, living with their parents and three younger brothers at Findon. The family were in poor and difficult circumstances. In 2007 the accused was an 81 year old man. It is alleged that L was walking past the accused’s house one day and offered to help the accused out, as her religion had taught her to offer to help old people. She offered to and did do some cleaning and shopping for him, and over time the other two complainants met the accused as well.
The family was struggling financially, the accused assisted them with money, driving them places and providing them meals. Over time it is alleged that the family became reliant on the accused. Regularly the children would go to his house for an evening meal, the accused collecting them and returning them. The accused became trusted by the complainant’s parents and accordingly the girls were left with him on regular occasions.
At [43] the judge summarised some of the evidence of victim T, relevant to the background of this case:
[T] gave evidence that she was the oldest child in the family, being 18 at the time of giving evidence in April 2010. At the time of giving evidence she confirmed her sister L was 16, S was 11 and her three brothers were 7, 5 and 2. She admitted that the family had been struggling financially, particularly once the youngest child was born. It was at that stage her mother had got sick and her father had to stop working to care for her mother. T gave evidence that her mother now suffered from a brain tumour and epilepsy, and that the family’s income was limited to family welfare payments of various types.
I now set out the judge’s findings from R v Mittiga (No. 2) at [217]-[224] as those paragraphs concisely summarise the circumstances of the offending by each count:
[217]As a result of the above I find proven beyond reasonable doubt that [the appellant] on the 23rd day of May 2007 at Tyrie Avenue Findon indecently assaulted T, a person of the age of 16 years by, in the third bedroom of his house grabbing her arm, pulling her onto his lap, lifting up her jumper and rubbing her stomach with his hand on her bare skin towards her breast, then taking his hand from under T’s jumper and placing it onto T’s right breast for approximately two seconds before T pushed the accused’s hand away and saying no. I find that the elements of the offence of indecent assault as earlier articulated are made out in that the accused unlawfully applied force intentionally and without lawful justification or excuse to T, accompanied by circumstances of indecency. I find that placing his hand under T’s clothing on her stomach and moving it towards her breast and then grabbing her breast on the outside of her clothes is indecent having reference to what a reasonable contemporary standard would describe. Accordingly I find count 1 in the information proven beyond reasonable doubt.
[218]I find proven beyond reasonable doubt that [the appellant] between the 23rd day of May 2007 and the 30th day of April 2008 at Crittenden Road Findon indecently assaulted T a person of the age of 16 years in the lounge room of the accused’s house at Crittenden Road when the accused was sitting on the lounge in the lounge room with T. I find that the accused placed T’s leg over his leg and started rubbing T’s left chest area and breast and thigh. I find that this was an intentional and unlawful application of force to T without lawful justification or excuse accompanied by circumstances of indecency. I find that in all the circumstances placing T’s leg over his leg, rubbing her chest and breast and upper thigh was indecent in the relevant sense. I find count 2 in the information proven beyond reasonable doubt.
[219]I find proven beyond reasonable doubt that [the appellant] between the 31st day of March 2008 and 1st day of May 2008 at Crittenden Road Findon indecently assaulted T a person of the age of 16 years by pushing T into the kitchen table, leaning over her, placing his hands down the front of her pants, touching her skin and moving his hand down her pelvis, attempting to kiss her and rubbing his penis on her leg through her clothes. I find that this was an intentional and unlawful application of force to T without lawful justification or excuse and I find that the circumstances as described were indecent in the relevant sense. I find count 3 in the information proven beyond reasonable doubt.
[220]I find the proven beyond reasonable doubt that [the appellant] had unlawful sexual intercourse with a person under 12 years of age in that on 15 June 2008 at Findon he had vaginal sexual intercourse with S, a person of the age of 9 years, grabbing her by the hand, pulling her into the bedroom, locking the door, pulling S’s pants off, pushing her down on her bed, and then having vaginal sexual intercourse with her, by firstly placing his penis and then his tongue in her vagina. I find that during that process the accused also made contact with S’s chest with his hands and squeezed her which hurt. I find that S was under the age of 12 at the time, being 9 years of age. I find count 4 in the information proven beyond reasonable doubt.
[221]I find proven beyond reasonable doubt that [the appellant] had unlawful sexual intercourse with a person under 17 in that on the 15th day of June 2008 at Findon he had vaginal sexual intercourse with L, a person of the age of 14 years, in that on that day he drove her to his house on the pretext of getting her to change a light bulb and when she was in the process of doing that he grabbed her, pushed her onto his bed, held her arms, said “things are gonna happen now” and then had vaginal sexual intercourse with her for some minutes until interrupted by a lady knocking on the door. I find that L was 14 years of age at the time of these events. I find count 5 in the information proven beyond reasonable doubt.
[222]I find proven beyond reasonable doubt that [the appellant] between the 31st day of July and the 1st day of September 2009 at Grand Junction Road Kilburn indecently assaulted S a person of the age of 10 years by touching her on the breast when visiting her at the market whilst they were both sitting in his car. I find that he intentionally and unlawfully and without lawful justification or excuse applied force to S and that the touching of the breast was indecent in the relevant sense. I find count 6 in the information proven beyond reasonable doubt.
[223]I find proven beyond reasonable doubt that [the appellant] on the 19th day of September 2009 at Grand Junction Road Kilburn indecently assaulted S a person of the age of 10 years, by in his car at the market unbuckling his seatbelt, reaching over with his hand, and placing it on her leg and moving it towards her vagina. I find that this act was an intentional and unlawful application of force to S without lawful justification or excuse and that placing his hand on S’s leg and moving it towards her vagina was indecent in the relevant sense. I find count 7 in the information proven beyond reasonable doubt.
[224]I find proven beyond reasonable doubt that [the appellant] on the 19th day of September 2009 at Grand Junction Road Kilburn committed an act of gross indecency in the presence of S, a person under the age of 16 years by conducting a detailed and explicit conversation describing having sex with his wife. The accused asked S if she knew how to have sex, described vaginal and oral sexual intercourse with his wife both in bed and in his car. I find that the conversations alleged by the complainant did occur, that it was in the presence of the complainant and directed towards S who was under the age of 16. I find that the conversation was indecent having regard to the complainant’s age, the nature and circumstances of the conversation and contemporary standards of morality and decency. I apply Singleton v Police (2009) SASC 41. I find that the indecency was gross in that it was considerably more than minor or trivial indecency and that it can be properly characterised as grossly indecent. I find count 8 in the information proven beyond reasonable doubt.
Aside from the eight counts on the information, the complainants also gave evidence regarding uncharged acts. Complainant S told the court that apart from count 4, the appellant had had sex with her more than ten times before the charged matter and that it had happened all the other times she had been at the appellant’s house. S also said that the accused sometimes gave her money but sometimes did not. S gave evidence that on some occasions the appellant would give her lollies. Neither T nor L described uncharged acts in their evidence. However, S told the court that she had seen L taken into the bedroom by the appellant as many times as she had.
The judge found that the uncharged acts, comprising sexual acts over a period of at least two years, provided a background and context against which count 4 occurred.
Grounds of appeal
The grounds of appeal raised by the appellant are:
1. The sentencing judge erred by the method used to calculate the sentence.
2. The sentence is manifestly excessive in that the sentencing judge did not give adequate weight to the mitigating circumstances of the appellant.
Sentencing approach
As I have said earlier, counts 1-5 were committed prior to the appellant being arrested the first time. Counts 6-8 were committed subsequently and while the appellant was on bail. I will refer to these as the first and second group of offending.
The sentencing judge approached the matter in two stages.
The judge fixed a notional head sentence in respect of the first group of offending of 12 years. He then fixed a non-parole period in respect of that first group of offending of 9 years. The judge then fixed a head sentence of 5 years for the second group of offending. For that second group of offending the judge fixed a non-parole period of 4 years. The two notional sentences were ordered to be served cumulatively. This resulted in a head sentence of 17 years and a non-parole period of 13 years.
After that first stage, the judge then considered whether the sentence was appropriate in light of the principle of totality. A year was then deducted from each of the penalties imposed. This meant the first group of offending attracted a head sentence of 11 years with a non-parole period of 8 years and the second group of offending attracted a head sentence of 4 years with a non-parole period of 3 years.
The end result was a head sentence of 15 years with a non-parole period of 11 years to be served.
Submissions the by appellant
Ms Davison, counsel for the appellant, submitted that the sentencing judge erred in his approach. She submitted that it was an error to fix a non-parole period as against each of the two notional head sentences prior to considering totality. She further submitted that after considering totality, the judge should have fixed a non-parole period proportionally in relation to the head sentence arrived at, rather than reduce each period by one year.
Ms Davison submitted that the error in the sentencing judge’s approach led to manifestly excessive sentences being imposed. It is submitted that the sentence is crushing.
It is further submitted that the head sentence of 15 years is high when the personal circumstances of the appellant are taken into consideration. It is also submitted that the non-parole period of nearly 75 per cent of the head sentence is high and does not properly allow for the appellant’s age.
The personal circumstances referred to by Ms Davison are the appellant’s advanced age; the lack of relevant prior convictions; and his physical and mental health. Ms Davison further submits that the appellant has been an industrious man.
(i) Sentencing older offenders
Ms Davison relies on Gulyas v Western Australia (2007) 178 A Crim R 539 where Steytler P set out the principles in relation to sentencing older offenders at [54]:
[54]It seems to me that the following broad general principles might be extracted as being ordinarily applicable in a case such as the present:
(1) Where moral culpability is reduced by reason of advanced age (which will inevitably mean that the advanced age is coupled with some other factor that is a consequence of it, for example when there is an age related mental impairment), allowance should be made for that factor.
(2) Where there is evidence sufficient to justify the conclusion that circumstances associated with advanced age (for example, continuous ill health, or ill health coupled with physical or mental frailty) will make imprisonment more arduous for the offender than is normal, allowance should be made for this.
(3) Account may also be taken of hardship for the offender arising out of his or her knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of useful life after release. However, the punishment must still reflect the crime and the seriousness of the offending behaviour may be such that the offender has forfeited the right to any reasonable expectation of useful life after release.
(4) Deterrence and denunciation are important even in the case of an offender of advanced age. However, where there are factors associated with age that justify a more lenient sentence, the general public will understand why the sentence is less severe than might otherwise have been the case and the purposes of deterrence and denunciation will still be served. However, if this is to be achieved, the punishment must still reflect the seriousness of the crime.
In his summary of the relevant decisions, Steytler P referred to R v Hunter (1984) 36 SASR 101 at 103 per King CJ. As His Honour points out, the cases makes it clear that age is only one factor in the sentencing process. King CJ said in Hunter at 103 that the punishment must still be fairly proportionate to the crime.
In R v Liddy (No 2) (2002) 84 SASR 231 Mullighan J said at [30]:
[30]The cases clearly show that advanced age may have the effect of reducing a sentence in appropriate circumstances but it does not follow that such age necessarily has that consequence. Obviously a person in his eighties or nineties is not to be inadequately punished for serious crime, merely because of his age. It is to be expected that in such cases the effect of the sentence is that the offender will probably die in prison. Age cannot subsume all other matters to be taken into account, including the four main considerations on sentence, appropriate punishment, protection of the public, deterrence, both general and personal, and rehabilitation, although it may be said that advanced age may have an effect upon one or more of those considerations, particularly deterrence: see Holyoak (at 507) per Allen J.
[R v Holyoak (1995) 82 A Crim R 502]
It is submitted that due to his age, imprisonment is a greater burden on the appellant than on others both because each year served represents a substantial proportion of the appellant’s life.
Ms Davison submits that no matter what length of sentence is imposed on the appellant at this stage of his life, he is at the risk of dying in gaol. It is submitted that there is no reason not to give the appellant some hope of being released at a time when he is able to live out his life in the community. Ms Davison pointed out that when released he would be subject to supervision under the parole system. At the time of sentencing, the appellant was aged 83 years. Ms Davison submitted that the sentence has “an air of disbelief about it” given that the appellant will not be eligible for release on parole until he is aged 94 years.
(ii) The sentencing approach
As to the method used by the judge, reliance is placed on R v Randall-Smith and Davi (2008) 100 SASR 326. In that case the sentencing judge fixed separate notional head sentences for each of the counts of robbery and then discounted that accumulated sentence of 43 years for pleas, contrition and co-operation. This resulted in a notional head sentence of 24 years. Further discount was then made for totality, resulting in a head sentence of 16 years. Gray and Layton JJ at [90] of their joint judgment discussed the approach, referring to Bleby J in R v Nylander (2003) 228 LSJS 24 at [81]-[85]. Such an approach, of adding together individual notional penalties, was said to create an “air of unreality” about the sentencing process and a “degree of artificiality”, particularly when the notional total approaches the life expectancy of an average person. In Randall-Smith and Davi both defendants were in their twenties.
(iii) The appellant’s mental health
In relation to the appellant’s mental health, it is submitted that the offending commenced in the year after the appellant’s wife passed away from cancer. The appellant and his wife were married for 58 years. It was submitted that the loss of his wife deeply affected the appellant. Ms Davison pointed to the report of clinical-forensic psychologist Mr Fugler in which he stated that the appellant suffered from a grief reaction that involved depression, anxiety, a deep sense of loss, social isolation, difficulty sleeping, and loneliness. Mr Fugler reported that the appellant has experienced intrusive thoughts of death. The report stated that the appellant was prescribed medication to assist his sleep. Ms Davison submitted that the loss of the appellant’s wife played a significant role given that one sees a man of 81 to 82 years of age embarking upon this course of offending at that stage of his life and without anything of the kind in his background.
Ms Davison submitted that the appellant is not in good health and that imprisonment will be a greater burden. She pointed to a letter from Dr Simounds, the appellant’s general practitioner, in which Dr Simounds lists the physical health conditions which the appellant suffers from. These are stable angina, Type 2 diabetes, hypertension, raised cholesterol, emphysema and spinal osteoarthritis. Ms Davison submitted that having regard to the greater burden that imprisonment places on the appellant, this calls for an exercise of mercy in relation to the length of time he is required to serve.
Ms Davison submitted that the appellant’s prospects of rehabilitation must be considered in light of his compliant conduct while on home detention bail.
Submissions by the respondent
Ms Boord, counsel for the respondent, submitted that although the sentencing judge fixed separate sentences for each of the two groups of offending, the 15-year head sentence with a minimum of 11 years to be served was within the appropriate range for such serious offending. She submitted that the approach taken was unorthodox but the situation facing the sentencing judge was an unusual and difficult one.
Ms Boord submitted that when deciding whether the sentence imposed is manifestly excessive, consideration must be given to the circumstances of the offending. Reference was made to the young age of the victims; the fact that the three of them were sisters; that the offending represented a gross breach of trust in that the appellant had befriended the family which was in difficult circumstances, and that the family had come to rely upon the appellant in some respects. Counsel pointed out that despite being arrested, charged and bailed twice, the appellant breached his bail by reoffending in respect of the youngest and most vulnerable of the three victims.
It is submitted that the principles and guidelines for sentencing set out by Doyle CJ in R v D (1997) 69 SASR 413 apply to this case, particularly in relation to the victim S.
At 423-434, Doyle CJ said:
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 to 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. It appears that the sexual abuse of children by persons in a position of trust is quite widespread. It may not be occurring more often than it did in the past. It may well be that it is now being detected more often than it was. Be that as it may, the offences are involved come before the courts with disturbing frequency …
The starting point for offences involving unlawful sexual intercourse with children under twelve 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 … 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.
Ms Boord submitted that the court must take into account the appellant’s plea of not guilty to all charges, the lack of remorse, the lack of contrition, and the fact of the offending while on bail when considering the appellant’s prospects of rehabilitation and the risk of recidivism. With regards to that submission I note that the appellant did not express any remorse to Mr Fugler and again denied the commission of the offences. Ms Boord submitted that the offences took place at the advanced age that the appellant is now at, and this makes the prospects of rehabilitation very poor.
Ms Boord submitted that while there is a risk of the appellant dying in gaol, this risk exists no matter what length of time the appellant is required to serve. It is submitted that the non-parole period of 11 years is appropriate and within range in the circumstances. Ms Boord concedes that it is high but still appropriate and that the non-parole period is an appropriate proportion of the head sentence.
Analysis
Section 10(1)(l) of the Criminal Law (Sentencing) Act 1988 (the Act) provides that a court should have regard to a defendant’s character, antecedents, age, means and physical or mental condition when sentencing. Pursuant to s 10(1)(o) of the Act, a court should also have regard to any other relevant matter. In this case it is submitted by counsel for the appellant that the offending occurred around the time of and after the death of the appellant’s wife. It is submitted this is a relevant matter.
I have considered all of the matters in mitigation referred to by Ms Davison in her oral and written submissions. I accept that aside from the offences the subject of this appeal, the appellant was otherwise a person of good character with no relevant prior convictions. However, that is often the case in offences of this kind.
I do not consider the appellant’s loss of his wife to be a matter relevant to mitigation of sentence. It certainly forms part of the appellant’s background and the background to the offending, and may in some way explain the offending although not excuse it. I understand that it has negatively affected his mental health; so much is clear from the report of Mr Fugler. Although it must certainly have been an extremely sad time for the appellant after so many years of marriage, and according to the report he has been depressed since that time, in my view it is not shown to be related to the offending and is of limited weight in sentencing the appellant.
I accept that by virtue of the appellant’s age and state of physical health imprisonment is a greater burden on him than on others. I agree with the principles expounded in Gulyas v Western Australia and set out earlier in these reasons at [24]. However, in my view these matters cannot subsume all other matters: see R v Liddy (No 2) (2002) 84 SASR 231 at [30]. I consider that the appellant’s health, while not perfect, is not unusual for a person of his age. I accept that there is a very real prospect of the appellant dying in gaol but still, a sentence needs to be imposed which reflects the seriousness of the offending: see R v Ellis (2010) 107 SASR 94 and Gulyas v Western Australia. See also King CJ in Hunter at 103. In my view the punishment in this matter is fairly proportionate to the crimes. Ms Davison relied on Ellis for the proposition that age is a significant consideration in relation to the length of the non-parole period fixed for offenders sentenced when they are at an advanced age.
In Ellis the defendant enjoyed what could be called his prime years as a free man in the community, and was not punished for his earlier crimes until the latter stages of his life. This was said to reduce the force of the argument that by virtue of his advanced age, each year he served represented a substantial proportion of the period of life left to him.
This case is unlike Ellis and many others, in that the commission of the crimes and sentencing both occurred when the appellant was of an advanced age, with only a short gap in between. The force of the argument that imprisonment is a greater burden on the appellant is not diminished, but I repeat that this matter cannot subsume all other matters, and this matter is but one of many sentencing considerations.
Principles of deterrence, both general and personal, and denunciation both play a very important part in this appeal, in my view. Offences of this nature, involving a breach of trust and vulnerable victims, are extremely serious. Counsel for the respondent referred to R v D. I respectfully adopt the views of Doyle CJ in that case at pages 423-424, set out earlier, in relation to the effect that these offences have on the community and the need to deter others from committing these offences.
Personal deterrence must also be addressed. The appellant committed the last three offences on the information after he had been arrested, charged and bailed in respect of the earlier offences. It seems that the police action did not deter him from committing those further offences. Advanced age in some cases can mean that personal deterrence is a less important sentencing consideration, for example, if isolated offences were committed during youth and the accused is only charged when he or she is much older. That is not the case here.
As I said when dealing with the submissions on appeal, counsel for the appellant referred to Randall-Smith and Davi. I do not consider that the issues which arose in that case occurred here. The approach taken by the sentencing judge here, although similar to what happened in Randall-Smith and Davi, did not create an “air of unreality”. Any sentence of imprisonment imposed on the appellant at the age of 83 would naturally approach the life expectancy of an average person purely by virtue of his age at the time of sentencing. That does not lead to the conclusion that the sentencing judge erred in his approach.
Conclusion
In my view the approach taken by the learned sentencing judge in calculating the sentence was somewhat unorthodox. Although what His Honour was doing is transparent, it will be necessary to remove some possible uncertainty which exists. I deal with that shortly.
In any event, I consider that the sentence arrived at was within range in light of the offences committed. In particular I have regard to the position of trust the appellant was in, the personal circumstances of the victims, particularly in relation to their financial vulnerability and ages. Because these sexual offences were against young girls, the need for deterrence, both general and personal, and the need to impose adequate punishment for the offences, are important considerations. Taking into account all of the circumstances I have referred to earlier, it is my view that the sentence imposed is appropriate for the seriousness of this offending. The sentence was not manifestly excessive in my opinion.
I have not overlooked the mitigating circumstances referred to by counsel and the authorities which discuss those matters. I have concluded that there is no manifest error in the sentencing process.
Section 32 of the Criminal Law (Sentencing) Act 1988 (SA) does not appear to contemplate that two separate non-parole periods will be fixed in respect of a prisoner who is serving a sentence of imprisonment. I agree with Ms Davison that it was an error on the part of the Judge to fix a non-parole period in relation to each separate group of offences. What the Judge did produces a situation in which, after the first non-parole period expired, there would be a period of time before the next non-parole period began, because that non-parole period was fixed in relation to the second group of offences.
The judge should have fixed the head sentence in relation to each group of offences made an order for accumulation, and then should have fixed a single non-parole period in relation to the combined head sentences.
There is also an uncertainty as to the final form of the sentence. The endorsement on the Information records a head sentence of 15 years’ imprisonment, and a non-parole period of 11 years, both to commence from 8 July 2010. But in fact, on the judge’s approach, it was the first head sentence alone that came into effect from 8 July 2010. The judge’s reasons for sentence suggest that, in the end, he might have been intending to impose a single sentence pursuant to s 18A. This should be clarified.
Accordingly, it is necessary to correct the record. To that limited extent it is necessary to allow the appeal, but as the appeal is allowed only on matters of form, that does not require the Court to consider the sentence afresh.
In my view, the appropriate sentence is on counts 1 to 5, a single sentence of imprisonment for 11 years. On counts 6 to 8 the appropriate sentence is a single sentence of imprisonment for 4 years, that sentence to be cumulative upon the first sentence. In relation to the combined periods of imprisonment of 15 years, a single non-parole period of 11 years should be fixed. The first head sentence and the non-parole period are to commence from 8July 2010
PEEK J. I agree with the orders proposed by Anderson J and generally with his reasons.
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