R v Omana - [2007] SASC 392

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v OMANA
[2007] SASC 392
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice Layton)
16 November 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Appeal against sentence - appellant convicted of unlawful sexual intercourse with victim T aged 15 years and victim N aged 16 years - appellant aged 32 years at time of offending - victims affected by alcohol and cannabis - trial judge sentenced appellant to one term of imprisonment of three years and eight months with respect to the offending against T - a sentence of 18 months was imposed with respect to the offending against N - sentences to be served cumulatively - a non-parole period of three years was fixed - whether sentence manifestly excessive - relevant factors. Held: appeal allowed - appellant re-sentenced.
Criminal Law Consolidation Act 1935 (SA) s 364(3); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Petrovski [2005] SASC 330, unreported, CCA, 1 September 2005; R v B, J [2007] SASC 67, unreported, CCA, 2 March 2007; R v Smith (2007) 97 SASR 302; R v Halse (1997) 70 SASR 456, discussed.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE

R v OMANA
[2007] SASC 392
Court of Criminal Appeal: Doyle CJ, Nyland and Layton JJ

DOYLE CJ: I agree with the orders proposed by Nyland J, and with the reasons that she gives for making those orders. There is nothing that I wish to add.
NYLAND J: The appellant pleaded guilty to a charge of indecent assault, and two charges of unlawful sexual intercourse relating to a victim, T, who was aged about 15. The appellant also pleaded guilty to two counts of indecent assault relating to a victim, N, who was aged about 16.
At the time of the offending, the maximum penalty for the crime of indecent assault was imprisonment for eight years, and the maximum penalty for the crime of unlawful sexual intercourse was seven years.
On 13 June 2007, a District Court judge imposed a sentence of imprisonment of three years and eight months with respect to the offences relating to T, and a sentence of 18 months with respect to the offences relating to N. He ordered that the two sentences be served cumulatively. That resulted in a head sentence of five years and two months. The judge fixed a non-parole period of three years. The sentence was directed to commence from 11 May 2006.
The appellant has appealed against that sentence on the ground that the head sentence and non-parole period are manifestly excessive. In addition, there was a complaint that the trial judge erred in failing to suspend the term of imprisonment, but that ground was not pursued on the hearing of the appeal. Permission to appeal was granted by a single judge on 30 July 2007.
The personal circumstances of the appellant:
The appellant was 32 years of age at the time of the offending, and is now 34. He was born in the Congo. He is the eldest of three boys and lived with his family in Kinsasha. For the first 12 years he lived in his father’s house and was educated there. He then went to live with his mother and brothers and attended high school. He went to the University of Kinsasha for some time but due to the troubles that occurred in the Congo, his mother took him and his brothers to live in Angola. The appellant worked trading clothes in Angola for about four years. When it became unsafe in Angola, his mother arranged for the family to escape to South Africa. The appellant met his wife in South Africa. She is South Australian and was visiting South Africa as a tourist. They eventually married and a daughter was born in 2001. After about two years, the appellant received a spousal visa and came to Australia to live. In Australia he worked as a labourer and machine operator and a security officer.
These offences were committed in 2005. Some time after the appellant was arrested, his wife left taking the child with her. The appellant has not had any contact with either of them since that time.
Dr Marie O’Neill, a psychologist, saw the appellant on three occasions during January 2006 and provided a report dated 29 January 2007. She indicated that the appellant presented with distinct signs of depression, rooted in memories of the trauma of his early childhood when he had to flee from the Congo, and later Angola. It mentioned that his isolation from his wife and child had added significantly to his grief and depression. The appellant told Dr O’Neill that at the time of his separation he had tried to commit suicide but was saved by police. Dr O’Neill said he was not currently suicidal but he had been prescribed medication for depression. Dr O’Neill thought it was highly likely that continued separation from his loved ones and society would cast him into a very serious depressive illness. She considered that if he remained incarcerated he should be referred for psychological counselling. She said that the appellant tries to deal with his situation in a down to earth manner, at the same time acknowledging its gravity and his deep remorse for his “stupid actions”. The appellant told her that he had never engaged in similar behaviour in his life, nor would he ever again.
The circumstances of the offending:
The appellant had met both T and N about four years prior to the commission of the offences when he had been their trainer in a martial arts class. Their respective families had become friends and the appellant and his wife had attended social functions with the girls and their families. On Friday, 8 July 2005, both girls visited the appellant’s house. The appellant as well as his wife and child were at home. In the course of the afternoon, the girls consumed some beer and cannabis supplied by the appellant. It was not, however, suggested there was any sinister motive about this, and the judge accepted that the appellant had been at earlier social functions where he had observed the girls, in the company of their parents, drinking alcohol, apparently with their permission. The girls eventually stayed on for dinner and later accepted an invitation to stay overnight. The appellant’s wife prepared a blow-up mattress which was set up for the two girls in the spare room. The times at which various events took place are unclear but it seems that the girls went to sleep with their clothes on sometime after 9 pm.
The judge described the conduct of the appellant which thereafter occurred in the following way:
With regard to T, the next thing that she can recall is that she woke up with you on top of her. You had pulled down her jeans to her knees. You had your pants down. You were rubbing your pelvis against her. You also put your hand under her bra and felt her breasts. This is the conduct, the subject of the offence of Indecent Assault against T.
Whilst this was occurring, your young daughter started crying and your wife could be heard talking to her in another room. You ceased this conduct and walked out of the room. After this, T pulled her jeans up and went back to sleep.
Sometime later, T was awoken again with you lying between herself and N on the mattress. T’s jeans had been pulled down. You were feeling around her vagina with your hand. You then inserted your fingers in her vagina. Your fingers remained in her vagina for some time. This conduct is the subject of the first offence of Unlawful Sexual Intercourse against T. You ceased this conduct after a period of time and left the room again. After you left, T commenced to cry and she then fell asleep.
Later she was awoken again to find you on top of her with your penis in her vagina. You had pulled down her jeans. You continued penile/vaginal intercourse with her for some time. T was too scared to say anything, or move. The penile/vaginal sexual intercourse is the subject of the third offence against T, namely, Unlawful Sexual Intercourse.
During the first occasion that you were lying between the two girls, on the blow-up mattress, you had earlier turned your attention to N. She was awakened by you lying behind her and stroking her hair. You then put your hand under her bra and fondled both her breasts. This is the conduct, the subject of the first offence of Indecent Assault against N.
After you had fondled her breasts you directed your hand down towards her vagina, but she pushed you away. She said she then felt you turn over. She said she heard your wife’s voice and your daughter crying. At that point, you arose and left the room. N then fell back to sleep.
N was later awakened by you having your hand under her top. After that, you then tried to put your hand down her pants. Your conduct of placing your hand under her top clothing is the subject of the second count of Indecent Assault against N.
N said that after this conduct, she could hear the sound of T’s jeans being undone. She said that she heard T crying. She said that she felt that someone was moving up and down on the mattress.
During the course of your entire conduct, the room was in darkness.
The judge described the offending as serious, and said that there was an element of breach of trust associated with the offending, as both girls’ families had trusted the appellant as a friend. The girls had also trusted the appellant as a result of his relationship with their respective families. The judge took into account the report of Dr O’Neill. He referred to the victim impact statements in which each of the girls had “graphically describe[d] the devastating effect [the appellant’s] conduct has had on each of them”, and he commented that each continued to be traumatised by the appellant’s offending. The judge referred to the submission by the appellant’s counsel that at the time of the offending, the appellant was intoxicated, which the judge said did not mitigate the offending, but did go some way to explain the appellant’s conduct.
The sentence:
The appellant’s pleas of guilty were entered on the morning of the trial, following negotiations which resulted in the prosecution not proceeding with two counts of rape which had been originally charged.
The judge accepted that the appellant was remorseful and, despite the lateness of the plea, gave the appellant credit to acknowledge his pleas and his contrition.
The judge indicated that with respect to T, but for the pleas of guilty he would have imposed a term of imprisonment of four years and four months, but he reduced that to three years and eight months. With respect to the two offences of indecent assault relating to N, he indicated that but for the pleas he would have imposed a sentence of 22 months imprisonment, but he reduced that to 18 months.
The appeal:
Counsel for the appellant accepted that the victim impact statements contained important material for the judge to take into account. She submitted, however, that a conservative approach should be taken to the content of them, as the distress described by the victims related to circumstances which suggested rape, whereas that was not the basis on which the case had finally resolved. She also referred to the declaration of the appellant’s wife that at the house that afternoon discussions had revolved around the girls having problems with their parents. It also appeared that they had left school a week earlier and were living at a friend’s place while in the process of looking for somewhere else to stay. As a result, counsel suggested that the girls were already in a situation where their schooling and home life had been disrupted, and the victim impact statements should be read in light of those matters.
Counsel for the appellant also submitted that the offending of the appellant in effect amounted to one incident as opposed to a course of offending which had taken place over a long period of time. She also took issue with the judge treating the appellant’s conduct as a breach of trust. She referred to R v Petrovski[1], in which sexual offending had occurred whilst the defendant was a guest in the victim’s home. That was described by the sentencing judge as a breach of trust. In the course of his reasons in allowing the appeal, Gray J said (at [49]):
Although the circumstances under which the appellant came to be at T’s home form part of the circumstances surrounding the offending conduct, they did not give rise to a breach of trust so as to amount to an aggravating factor. It has long been recognised that breaches of trust amounting to a circumstance of aggravation may arise in cases of sexual offending. Examples are the relationship of father, stepfather or person in loco parenti between the offender and the victim. Other relationships giving rise to an abuse of trust are those of school bus driver and passenger, taxi driver and passenger, schoolteacher and pupil, religious teacher and pupil and police officer and victim. In the present case, no such relationship existed between the appellant and T. True it is, that common decency called on the appellant to respect the hospitality offered to him. However, the appellant’s lack of respect did not give rise to an abuse of trust.
[1] [2005] SASC 330, unreported judgment of the CCA delivered 1 September 2005
In reliance upon those comments, counsel for the appellant argued that the appellant’s relationship with the girls in this case was not of the type which would constitute a breach of trust, which would require it to be treated as a circumstance of aggravation.
In further support of her argument that the sentence imposed upon the appellant was manifestly excessive, counsel referred to a number of other sentences for similar offending.
In R v B, J[2] the Court of Criminal Appeal allowed an appeal against sentence and re-sentenced the appellant to a head sentence of 15 months with a non-parole period of eight months. By majority an order was also made for suspension of that sentence. The appellant was aged 27 years at the time of the offending, and the victim was 15. Included in the matters taken into account were the fact that the appellant had been in custody for a period of five months, and had the experience of facing a trial for rape with respect to which a not guilty verdict had been returned.
[2] [2007] SASC 67, unreported judgement of the CCA, delivered on 2 March 2007
R v Smith[3] was a Crown appeal against sentence. The respondent was convicted by a jury of three counts of unlawful sexual intercourse with J, and one count of sexual intercourse with C. The respondent was sentenced to three years and six months with respect to the offending with J, and one year and eight months with respect to C. The sentences were ordered to be served cumulatively which resulted in a head sentence of five years and two months. A non-parole period of two years and six months was fixed, and an order was made for suspension of sentence. On appeal, Gray J (with whom Doyle CJ agreed) described the sentence imposed with respect to J as merciful, but said it was not one that should be reviewed on a Crown appeal. He considered, however, that the sentence with respect to C, was inadequate. It involved a particularly serious breach of trust. The respondent had taken on the responsibility and duties of a guardian towards a 15 year old adolescent, to enable his sexual relationship with C to continue.
[3] (2007) 97 SASR 302
Gray J said (at 310):
The sentence imposed with respect to the offending against C was inadequate, and manifestly so. The gross breach of trust, the manipulations involved and the respective ages of the respondent and C called for a head sentence of three years. As this is a Crown appeal, it is appropriate to fix a head sentence at the lower end of the appropriate range. A reduction in the order of 20 per cent on account of the plea was appropriate. A head sentence of two years and four months should be imposed for this offence.
The two sentences of three years and six months with respect to the offending against J and two years and four months with respect to the offending against C should be cumulative. As discussed earlier, the sentence imposed against J was merciful. There is no need for any further reduction from the overall sentence having regard to the principles of totality. I would invoke section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and impose the one sentence of five years and ten months.
The respondent has no prior criminal record, a good employment history and ongoing family support. These factors allow for the fixing of a short non-parole period. In the circumstances, the period fixed by the Judge of two years and six months is appropriate. It is also to be borne in mind that the respondent has been exposed to double jeopardy and has been subject to a suspended sentence for a period of almost four months. This is a further reason not to interfere with the non-parole period fixed by the Judge.
…
… [T]he respondent’s conduct, in particular the gross breach of trust with respect to the offences against both J and C; the respondent’s abuse of the guardian relationship with C, the persistent nature of his conduct and that he has shown no remorse and little appreciation of the moral and criminal culpability of his conduct, is too serious to permit the sentence to be suspended.
After allowing a 20% reduction for the plea, the sentence with respect to C was increased to two years and four months, which resulted in a head sentence of five years and 10 months with a non-parole period of two years and six months which was not suspended.
Another case referred to by counsel for the appellant was R v Halse[4]. That was also referred to the court on the hearing of the appeal in R v B, J and I adopt what Gray J there said about it (at [22])[5]:
Counsel for the respondent made reference to the case of Halse, where an immediate custodial term was imposed. This is a notoriously difficult offence in which to compare sentences imposed on different offenders. The circumstances vary significantly. Age can be misleading as a measure of maturity. The decision in Halse does not assist in the present case – the accused was aged 37 years and had relevant criminal antecedents, including offences of attempted rape and gross indecency.
[4] (1997) 70 SASR 456
[5] [2007] SASC 67, unreported judgment of the CCA, delivered 2 March 2007
Conclusion:
In my opinion, it was appropriate for the judge to give full weight to what the victims said in their victim impact statements, despite the way in which the matter resolved. If the matter had resolved on the basis that the girls had been consenting parties, that might be different, as that would be inconsistent with some of what they said in their victim impact statements. That, however, is not the case. Rather, the resolution of the matter simply indicates an inability of the prosecution to prove the appellant’s knowledge or awareness of their lack of consent. That does not negate the serious and traumatic impact of his actions upon them. Nor does the fact that the girls were living away from home lessen the seriousness of the appellant’s conduct. That aspect of the matter is also relevant to the argument as to there being a breach of trust. I do not think the sentencing judge purported to treat the appellant’s conduct as amounting to the sort of breach of trust which would fall within the traditional categories referred to by Gray J in R v B, J. He simply referred to the conduct as being “an element of breach of trust as a result of the appellant having had a trusting relationship, not only with the girls but with their families”. The fact that the offending occurred at a time when the girls were living away from home as a result of what appeared to be family problems, and in a place in which they were entitled to feel secure, and against a background of a long-standing friendship with them, as well as their respective families, in my opinion was a serious aspect of the appellant’s conduct, which the sentencing judge was entitled to treat as a matter of aggravation. In addition, there was a marked disparity in ages as the appellant was 32 at the time of the offending, and the girls were aged 15 and 16. There is, however, some force in the submission that the offences were not representative of a course of conduct. Although there was some break in the activity when the appellant moved in and out of the room to attend to his child, all of the offences occurred on the one occasion against the background of the appellant not having any relevant prior record of offending. He also appears to be truly contrite. The offending conduct was serious but does not appear to be of the same magnitude as that described in Smith where there was persistent conduct over a number of years which constituted a gross breach of trust.

Having considered these matters, in my opinion, the judge gave insufficient weight to the fact that this was one episode of sexual misconduct. The personal circumstances of the appellant suggest that this was an isolated incident and that it is not likely to recur. I would therefore allow the appeal and set aside the sentence imposed in the District Court. It is therefore necessary to re-sentence the appellant. Exercising the power under s 18A of the Criminal Law (Sentencing) Act 1988 (SA), I would impose a sentence of three years with respect to the offending against T and order that sentence to commence on 11 May 2006. I would impose the same sentence with respect to the offences against N as imposed by the District Court judge, namely a sentence of 18 months. That sentence would be cumulative upon the sentence imposed with respect to T. I would not suspend either sentence. That results in a combined head sentence of four years and six months. I would fix a non-parole period of two years and three months. The sentence and the non-parole period should operate from 11 May 2006 being the date on which the appellant was taken into custody. I make that direction for the purposes of s 364(3) of the Criminal Law Consolidation Act 1935.
LAYTON J: I agree with the orders proposed by Nyland J, and with her reasons.