R v P

Case [2003] SASC 428

R v P
[2003] SASC 428

Court of Criminal Appeal:

Coram:  Perry, Mullighan and Besanko JJ

  1. PERRY J.               The appellant appeals by leave against the sentence imposed upon him following his plea of guilty in the District Court to four counts of unlawful sexual intercourse and two counts of indecent assault. The sentence under appeal is that the appellant be imprisoned for 9 years with a non-parole period of 3 years and 6 months, both commencing from the date upon which he was sentenced, that is, 10 June 2003.

    Background circumstances

  2. The appellant is aged 45 years. He migrated with his family from the United Kingdom in 1969 at the age of 10 years.

  3. He married the victim’s mother in 1977. There were four children of the marriage: three daughters and a son.

  4. The offences in question were committed upon two of the daughters, whom for convenience I will refer to as S and A.

  5. The charges in question were representative of a course of conduct on the part of the appellant against both daughters while they were aged between 8 and 12 years.

  6. In the case of S, the appellant pleaded guilty to one count of indecent assault, alleged to have been committed between 9 November 1990 and 8 November 1992. That count was representative of a course of conduct during which time the appellant touched S on and around the vagina, after inserting his hand beneath her pyjamas while she was in bed at night. It was alleged that this occurred as often as three to four times a week.

  7. On a separate count (count 5), the appellant pleaded guilty to unlawful sexual intercourse with S by inserting his finger into her vagina. This occurred on one occasion only.

  8. With respect to A, the appellant pleaded guilty to three counts of unlawful sexual intercourse and one count of indecent assault, all alleged to have occurred between 26 May 1988 and 25 May 1989. Again, these were representative counts. It appears that the appellant frequently inserted his finger into her vagina, sometimes but not always while she was in bed, and otherwise touched her in and around her vagina and breasts.

  9. The sentencing judge in his remarks on sentence referred also to an act of fellatio involving A, but this was an error.

  10. The appellant’s offending came to light in 1992 when S told a friend what had been happening to her, and the friend’s mother reported it to the appellant’s wife, who confronted the appellant.

  11. The appellant admitted to his conduct, moved out of the house and consulted Crisis Care, who in turn referred him to an organisation which conducts counselling and therapy sessions for sexual offenders, known as the Sexual Offenders Treatment Program (“SOTAP”). The appellant embarked on a long series of counselling sessions with SOTAP. Between 1993 and 1997 he completed in excess of 200 sessions, and according to a report from a psychologist, Dr Jack White, which was before the sentencing judge, the SOTAP therapy…

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R v P [2003] SASC 428
Case
[2003] SASC 428
Decision Date

CaseChat Overview and Summary

The appeal in R v P concerns the sentence imposed on the appellant after he pleaded guilty to four counts of unlawful sexual intercourse and two counts of indecent assault. The appellant was sentenced to imprisonment for 9 years, with a non-parole period of 3 years and 6 months. The Court of Appeal was required to determine whether the sentence was appropriate and, if not, what sentence should be imposed. The court considered the nature of the offences, which involved persistent sexual abuse of two of the appellant's daughters over several years, as well as the appellant's participation in a sexual offenders' treatment program. The court also examined the sentencing standards established in previous cases and whether they should apply to the appellant's case.

The Court of Appeal found that the sentencing discretion miscarried and that the sentence should be exercised afresh. The court agreed with the reasoning of Perry J that the sentencing standards established in R v D and subsequent cases should not be applied retroactively to the appellant's case. The court considered it appropriate to impose a heavier penalty for offences committed after the sentencing standards were established but believed that the appellant's case should be dealt with by reference to the standard reflected in previously decided cases. The court also noted that Doyle CJ's observations in R v D suggested that the heavier penalty should only be applied where the offence was committed after the decision in R v D or where part of the persistent offending occurred thereafter.

The Court of Appeal allowed the appeal and substituted a single head sentence of 6 years imprisonment with a non-parole period of 2 years and 6 months, both to commence from 10 June 2003. The court considered that this sentence was appropriate in the circumstances of the case, taking into account the nature of the offences and the appellant's participation in a sexual offenders' treatment program. The court also noted that the sentence was consistent with the sentencing standards established in previously decided cases. The final orders of the court are that the sentence under appeal is quashed and replaced with the new sentence.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals by leave against the sentence imposed upon him following his plea of guilty in the District Court to four counts of unlawful sexual intercourse and two counts of indecent assault. The sentence under appeal is that the appellant be imprisoned for 9 years with a non-parole period of 3 years and 6 months, both commencing from the date upon which he was sentenced, that is, 10 June 2003.Background circumstances The appellant is aged 45 years. He migrated with his family from the United Kingdom in 1969 at the age of 10 years. He married the victim’s mother in 1977. There were four children of the marriage: three daughters and a son. The offences in question were committed upon two of the daughters, whom for convenience I will refer to as S and A. The charges in question were representative of a course of conduct on the part of the appellant against both daughters while they were aged between 8 and 12 years. In the case of S, the appellant pleaded guilty to one count of indecent assault, alleged to have been committed between 9 November 1990 and 8 November 1992. That count was representative of a course of conduct during which time the appellant touched S on and around the vagina, after inserting his hand beneath her pyjamas while she was in bed at night. It was alleged that this occurred as often as three to four times a week. On a separate count (count 5), the appellant pleaded guilty to unlawful sexual intercourse with S by inserting his finger into her vagina. This occurred on one occasion only. With respect to A, the appellant pleaded guilty to three counts of unlawful sexual intercourse and one count of indecent assault, all alleged to have occurred between 26 May 1988 and 25 May 1989. Again, these were representative counts. It appears that the appellant frequently inserted his finger into her vagina, sometimes but not always while she was in bed, and otherwise touched her in and around her vagina and breasts. The sentencing judge in his remarks on sentence referred also to an act of fellatio involving A, but this was an error. The appellant’s offending came to light in 1992 when S told a friend what had been happening to her, and the friend’s mother reported it to the appellant’s wife, who confronted the appellant. The appellant admitted to his conduct, moved out of the house and consulted Crisis Care, who in turn referred him to an organisation which conducts counselling and therapy sessions for sexual offenders, known as the Sexual Offenders Treatment Program (“SOTAP”). The appellant embarked on a long series of counselling sessions with SOTAP. Between 1993 and 1997 he completed in excess of 200 sessions, and according to a report from a psychologist, Dr Jack White, which was before the sentencing judge, the SOTAP therapy records indicated “positive participation”. While the appellant was participating in the SOTAP program he admitted his offending with respect to A, and also an indecent assault on his third daughter, whom I will call K.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PERRY J MULLIGHAN J BESANKO J
In all the circumstances, I have reached the view that it is not an appropriate case in which the sentence should be suspended.Conclusion I would allow the appeal and quash the sentence under appeal. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 I would substitute a single head sentence of 6 years imprisonment with a non-parole period of 2 years and 6 months, both to commence from 10 June 2003. I have had the advantage of considering the reasons for judgment of Perry J. He has set out the relevant factual matters and the issues to be decided on this appeal. I agree that the sentencing discretion miscarried and that it should be exercised afresh. Perry J has discussed the relevant authorities and I agree with his conclusions except as I shall mention. The offence of persistent sexual abuse of a child was introduced by s 74(1) of the Criminal Law Consolidation Act 1935 by Act 23 of 1994, well after the appellant committed the offences for which he has now been sentenced. The sentencing standard in R v D (1997) 69 SASR 413 was not established until some three years later, also well after the appellant’s offending. In my view, the Court in D intended to establish that standard for offending, which occurred after the standard was established, and in the circumstances in which it is appropriate. Doyle CJ began his observations about establishing a sentencing standard by saying at 423:“This review of the decisions of this Court leads me to think that in future the sentences imposed for cases like this should be increased for persons who commit such offences in the future. (my emphasis)”And later:“It is not necessary for the court to give a warning before increasing the range of penalties for a particular type of offending: Poyner v The Queen (1986) 60 ALJR 616; Yardley v Betts (1979) 22 SASR 108 at 113-114, per King CJ; R v Lewfatt (1993) 3 NTLR 41 at 43-44, per Angel J and (at 45-46) per Priestley J. Nevertheless, as the cases cited recognise, warnings do have a part to play in the sentencing process. I consider it appropriate that the heavier penalty should be imposed in cases in which a conviction is recorded hereafter or a plea of guilty is entered hereafter. Although the heavier range of penalties could be applied in the present case, I consider that as a matter of fairness the present case should be dealt with by reference to the standard reflected in the previously decided cases to which I have already referred.”Whilst, as Perry J has pointed out, Doyle CJ said that the heavier penalty should be imposed in cases “in which a conviction is recorded hereafter or a plea of guilty is entered hereafter”, I think the tenor of his observations is that the heavier standard should only be applied where the offence was committed after R v D was decided or at least part of the persistent offending occurred thereafter. The same must be said in relation to sentences for individual offences which are regarded as representative offences. That is the view I expressed in R v Liddy (No 2) 84 SASR 231 at 236-237. Williams J expressed the same view, at 270, as did Gray J at 282-283. In that case the conduct was so severe that there was no applicable sentencing standard.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J, MULLIGHAN J, BESANKO J

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