R v P, LWJ - [2007] SASC 361

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v P, LWJ
[2007] SASC 361
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice Layton)
12 October 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCING
Appeal against sentence - guilty plea to four sexual offences - Judge imposed sentence of imprisonment, five years three months - non-parole period three years - whether sentence manifestly excessive - whether Judge erred in refusing to suspend sentence.
Held: Judge did not give adequate weight to conduct of other dominant person involved in commission of offences - Judge did not give adequate weight to appellant's intellectual disability - circumstances of offending unusual - sentence manifestly excessive - Judge did not give adequate regard to effect of imprisonment on dependants - unique circumstances - good reason to suspend sentence - appeal allowed - appellant re-sentenced to four years nine months imprisonment, non-parole period 21 months - sentence suspended.
Criminal Law Consolidation Act 1935 (SA) ss 49(3), 55, 56, 364; Criminal Law (Sentencing Act) 1988 (SA) s 10, 18A, referred to.
R v McLintock [1998] SASC 6746, discussed.
R v Trimper [2006] SASC 304, considered.

R v P, LWJ
[2007] SASC 361
Court of Criminal Appeal: Doyle CJ, Nyland and Layton JJ

DOYLE CJ: Mr P appeals against a sentence imposed by the District Court. A single Judge granted permission to appeal.
Mr P complains that the sentence is manifestly excessive.
Mr P pleaded guilty to four separate offences involving sexual misconduct. Three different victims were involved.
The offences
I begin by setting the offences in their context. The three victims are the daughters of Mr X, who is Mr P’s uncle. Over a long period of time, from about 1967 until about 1989, Mr X subjected his three daughters to a dreadful course of sexual abuse. There is no need to go into any details now. That abuse has had serious effects on the daughters, who are now adult women.
Mr X was sentenced at the same time as Mr P, and is now serving a sentence of imprisonment for 15 years, with a non-parole period of 10 years.
As the sentencing Judge said, it is difficult to think of a worse case of sexual abuse of children than Mr X’s offences.
On three separate occasions, at the urging of Mr X, Mr P committed sexual offences involving these unfortunate young girls, as they then were.
In 1974 or 1975, when the daughter in question was about 13 years of age, Mr X took her to the home of Mr P, and Mr P had intercourse with her there in the presence of Mr X. The daughter was then 13 years of age.
For this conduct Mr P was charged with and pleaded guilty to the offence of carnal knowledge, contrary to the then s 55(1)(a) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). That offence carried a maximum punishment, because the girl was more than 12 years of age, of imprisonment for seven years.
In 1975 or 1976 Mr X took the second of his daughters to the home of Mr P. There he caused her to perform an act of fellatio on Mr P, and Mr P then had intercourse with the daughter. Mr X was present while this happened.
For this conduct Mr P was charged with indecent assault, contrary to s 56 of the Act, and with carnal knowledge. For these offences he faced a maximum punishment of imprisonment for five years and imprisonment for seven years.
Between 1977 and 1978 Mr P had intercourse with a third daughter, then aged 14 or 15 years, in the presence of Mr X. For this offence Mr P faced a maximum punishment of imprisonment for seven years.
These matters came before the District Court in July 2007. By then Mr X was about 65 years of age, and Mr P was 52 years of age.
When the offences were committed Mr P must have been between about 20 years of age and about 24 years of age.
The sentence
The Judge imposed a single sentence of imprisonment, exercising the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA). The Judge sentenced Mr P to imprisonment for five years three months. But for the plea of guilty, the period of time that had passed since the offences were committed, and Mr P’s rehabilitation, he would have sentenced him to imprisonment for seven years. The Judge fixed what he described as a “relatively low” non-parole period of three years. He declined to suspend the sentence.
The circumstances of the offending
As will appear, the Judge sentenced on a basis which I consider to be correct, with one exception. In that respect I consider that the Judge erred.
The Judge rightly regarded these offences as serious. It was appropriate to sentence Mr P on the basis that he did not know the full extent of Mr X’s offending. On the other hand, Mr P took advantage of Mr X’s abuse of and dominance over Mr X’s daughters. Mr P did so for his own gratification. In that respect the present case is particularly serious. It must have been apparent to Mr P that these unfortunate girls were participating in sexual conduct with him at the instance of their father. This aspect of the case, Mr P’s involvement (although limited) in Mr X’s sexual abuse of his own daughters, is particularly serious.
There were a number of mitigating circumstances.
The Judge accepted that Mr P was now deeply sorry for his offending conduct, and was genuinely remorseful and ashamed. Mr P was a man of otherwise good character. No conviction of any kind was alleged against Mr P.
A number of referees spoke well of Mr P. Bearing in mind that about 30 years had passed since the offending conduct, the fact that Mr P has subsequently led a life without offending, and has apparently been a worthwhile member of the community, is of considerable significance.
On the material before the Judge Mr P appears to have maintained employment for most of his life. He has made a contribution to the community through his involvement in a number of community organisations.
These personal circumstances of Mr P supported some moderation of the punishment that would otherwise be imposed.
It was also appropriate to take account of the fact that it was unlikely that Mr P would offend again. It was relevant to bear in mind that he had never been to prison before, coming before the Court as a first offender.
When sentenced Mr P was living in a de facto relationship that had lasted for about two and a half years. His partner has a two year old son who has Down Syndrome, and other medical conditions. The child is classed as a “special needs” child. Caring for him properly is apparently demanding. The child was, I gather, under State care, but Mr P’s partner was in the process of trying to demonstrate that she could care adequately for her son. This process was described in material before the Judge as “reunification”. Mr P’s partner herself suffered from a number of medical conditions, that apparently made it difficult for her to cope with the care of her son. The evidence before the Judge indicated that Mr P provided significant assistance to his partner in caring for the child. His role in the reunification process was important. It was put to the Judge, and probably correctly, that without Mr P’s assistance the process of unification was likely to be ended.
The Judge appears to have given this matter little weight. He observed that the de facto relationship was “comparatively recent”, and made the point that the child was not Mr P’s child.
I consider that the Judge was entitled to give this matter comparatively little weight. Sadly, imprisonment often has an adverse effect on the family of the person imprisoned. Mr P’s absence from the family unit will put considerable pressure on his partner, and will make it difficult for her to care for her child as she wishes to. While the circumstances of Mr P’s partner are particularly difficult, and this was entitled to some weight, I agree with the Judge that only limited weight could be given to this matter.
On the hearing of the appeal Mr Stokes, counsel for Mr P, tendered further reports relating to the re-unification process, and to problems that Mr P’s partner had experienced. I would not admit that material. It does no more than bring up to date the information about a matter that was before the sentencing Judge. That is not a basis for the admission of evidence on appeal.
A more significant issue arises from a report by Dr Raeside, a forensic psychiatrist.
Dr Raeside had interviewed Mr P on two occasions. He provided two detailed reports. Mr P gave Dr Raeside a history of a childhood in which Mr P suffered significant physical and emotional abuse from his father. As a result, Mr P found it difficult to work with other people, and in particular found it difficult to deal with people in a position of authority. Mr X was Mr P’s cousin, and was about 13 years older than him. Mr P told Dr Raeside that Mr X was a “very influential person”, who was able to manipulate Mr P.
Based on the history that Dr Raeside obtained, he expressed the view that although Mr P was between about 20 years of age and about 24 years of age at the time of the offending, he was functioning at an early adolescent level, which he expressed as a level appropriate to the age of about 12. This opinion was based on the detailed history that Dr Raeside obtained from Mr P. Dr Raeside said that Mr P’s limitations meant that the influence of Mr X was likely to have been “even more pronounced” than it otherwise would have been.
Dr Raeside expressed the opinion that at the time of the offending Mr P was under “significant duress”, due to Mr P’s influence over him, and also due to his fear of retribution should his father (Mr P’s father) become involved. (I treat the reference to “duress” as a reference to influence, rather than duress in the legal sense.) Mr P told Dr Raeside that Mr X had threatened to tell his father about what had happened, and that he remained in considerable fear of his father.
One might be sceptical of these claims about Mr X’s influence over Mr P. But what Mr P told Dr Raeside gains support from the statements of each of the three daughters. Each of them refers to Mr X’s involvement in initiating the offending with Mr P. That went to the extent that Mr X was present in the room when the offences were committed, and in the case of two of the daughters assisted Mr P to insert his penis into the daughter’s vagina. One of the daughters refers to Mr P as seeming “retarded”, and the other refers to him as being “quiet and apprehensive” and “very nervous” at the time of the offending. There is no indication in the statements of the daughters that Mr P initiated or encouraged the conduct.
I add that based on the history that Dr Raeside obtained he concluded that there were no indications that Mr P was attracted to young girls. He said there was no basis for a diagnosis of paedophilia or of any other sexual deviance.
There is good reason to accept Dr Raeside’s opinion that at the time of the offending Mr P was vulnerable, “as a result of long standing physical and emotional abuse, possibly associated with below average intellectual ability as well”. Mr X’s influence over Mr P, and his fear of his father, are also significant factors referred to by Dr Raeside.
Although the Judge acknowledged these facts, his remarks indicate that he failed to make proper allowance for the circumstances in which Mr P offended. The Judge referred to the relevant facts, but said that he was unable to accept that the offences were attributable to the influence of Mr X, and fear of retribution from Mr P’s father, because the offending involved three separate instances separated by a period of some years. But in my respectful opinion, if Mr P was of limited intellect, and was subject to Mr X’s influence, then there is no reason to reject Dr Raeside’s opinion that those factors operated during the course of the offending conduct. The same factors would have been present on each occasion.
It is also relevant to bear in mind that in submissions to the Judge counsel for the Director of Public Prosecutions did not dispute the opinion expressed by Dr Raeside, while quite properly making the point that Mr P remained responsible in law for his conduct.
In my respectful opinion the Judge erred in this respect. He has failed to make sufficient allowance for the unusual circumstances surrounding Mr P’s offending conduct.
That led him to sentence on an incorrect factual basis.
Subject to that, I agree with the Judge that this was most serious offending. Mr P must have understood that he was involving himself in Mr X’s abuse of his daughters. But the isolated nature of the offending, the circumstances of the offending, and Mr P’s good record over a period of 30 years since then, all support the conclusion that the offending was due to a unique combination of circumstances, and support the conclusion that there is little risk of any further offending conduct.
So while I agree with most of what the Judge said in his sentencing remarks, I consider that the Judge failed to give sufficient weight to the involvement of Mr X in Mr P’s offending, and to the mitigating aspect of that involvement.
Nevertheless, as I have said several times, the offences are serious offences. Mr P remains responsible for what he did. General deterrence is a significant factor in arriving at an appropriate sentence. Mr P’s personal circumstances at the time he came to be sentenced entitled him to some reduction in the punishment that would otherwise be imposed, but not to a great deal.
As it happens, although the Judge sentenced on an incorrect basis, the head sentence that he finally imposed is only slightly greater than the sentence that I would impose if sentencing afresh. It cannot be said that in this respect the sentence is manifestly excessive. But, as will appear, I consider that the non-parole period is too high, and reflects the Judge’s failure to make appropriate allowance for Mr X’s involvement. Accordingly, the sentence should be set aside.
Having regard to the circumstances of the offending that I have outlined above, I consider that an appropriate starting point (on the basis of a single sentence) is about seven years, and after allowing for the plea of guilty, I would sentence Mr P to imprisonment for five years.
A sentence as substantial as that is required, despite the role of Mr X, because of the gravity of the offences. While the involvement of Mr X is a mitigating circumstance, Mr P’s involvement in Mr X’s abuse of his own daughters makes the offences more serious.
I consider that a low non-parole period is appropriate. First, because Mr P’s culpability is not as great as it might at first seem. Second, because there is every reason to think that Mr P will not offend again. Third, because at his age, and as a first offender, imprisonment is a serious punishment. The non-parole period that the Judge fixed is, in my opinion, too high. I would fix a non-parole period of two years.
The final question is whether the sentence should be suspended. The Court has power to suspend the sentence if there is good reason to do so. I have considered this matter very carefully. There are aspects of the case that could support a decision to suspend the sentence. I refer in particular to the lengthy period of time since the offending conduct, during which Mr P has demonstrated that he is a worthwhile member of the community, and is unlikely to offend again. The circumstances under which he offended are also capable of supporting a decision to suspend the sentence. But in the end I have concluded that the seriousness of the offences calls for a sentence of imprisonment that is to be served. This outweighs circumstances personal to Mr P. In the end I am not persuaded that there is good reason to suspend the sentence.
Conclusion
For those reasons I would allow the appeal and set aside the sentence imposed by the District Court. Exercising the power conferred by s 18A, I would impose a single sentence of imprisonment for five years. I would fix a non-parole period of two years. I would decline to suspend the sentence.
The sentence and the non-parole period should operate from 4 July 2007, that date when Mr P was taken into custody. I would make that direction for the purposes of s 364(3) of the Act.
NYLAND J: I have read the draft reasons of Layton J. I agree that the appeal should be allowed for the reasons she has expressed. I agree with the sentence which she proposes and I also agree that in the unique circumstances of this case it is appropriate for an order to be made for suspension of that sentence.
LAYTON J:
Introduction
This is an appeal against a sentence imposed by a judge in the District Court in relation to four sexual offences committed on three occasions with three young female victims. Mr P, the appellant, was charged jointly with his first cousin Mr X with these offences. Mr X was the father of the three victims and the three girls were therefore the appellant’s three second cousins.
The first offence occurred in about 1974/1975 and was carnal knowledge of L, who was then aged 13 years. That offence carried a maximum penalty of seven years’ imprisonment.[1]
[1] Criminal Law Consolidation Act 1935 (SA) s 55(1)(a) (now repealed).
The second and third offences both occurred on one occasion in about 1975/1976. These offences were one count of indecent assault and one count of carnal knowledge on J who was then 13 - 14 years old. At the time, indecent assault carried a maximum penalty of five years’ imprisonment for a first offence.[2]
[2] Criminal Law Consolidation Act 1935 (SA) s 56 (now repealed).
The fourth offence occurred in about 1977/1979 and was unlawful sexual intercourse with M who was then aged 14 – 15 years. At the time, this offence carried a maximum penalty of seven years’ imprisonment.[3]
[3] Criminal Law Consolidation Act 1935 (SA) s 49(3) (as it then was).
At the time of the offending the appellant was aged between 20 and 24 years of age, being the outer limits. At the time of sentencing he was 52 years of age.
For all the offending, the sentencing Judge imposed a sentence of imprisonment of five years and three months with a non-parole period of three years. The appellant complains that the sentence imposed was manifestly excessive in the circumstances.
Background
The background to the offending is somewhat complex. The appellant was sentenced at the same time as his cousin Mr X together with one other person who had also committed a sexual offence jointly with Mr X on L.
Mr X subjected his three daughters to appalling and depraved sexual abuse over a period spanning from 1967 until about 1989. The girls ranged in age from as young as six or seven to about 16. The last of the offending in 1988/1989 on his daughter L occurred when she was aged 25 or 26.
A number of statements were tendered in the sentencing process as well as psychiatric reports. The statements taken from the three victims, now older women, together with statements taken from the appellant’s sister as well as the former wife of Mr X, revealed Mr X to be a manipulative, brutal man who was sexually deviant. The statements portray him as being involved in manipulating his former wife into “wife swapping” as well as involving the appellant in sexual behaviour with his wife when the appellant was only aged 18 years. The statements taken from the three victims also indicate that he manipulated them into sexual conduct with each other as well as other persons. The statements also indicated that Mr X engaged in sexual behaviour with the appellant’s mother as well as his sister. Mr X admitted this conduct to Dr Nambiar as indicated in his report:
…a number of unusual sexual encounters and relationships and infidelities… perpetrated by himself and his wife…. [H]is abnormal sexual experiences during his developmental years only continued on during his adult years with a number of sexually deviant behaviours occurring between himself, his wife, and other adults, children and animals.

Dr Nambiar diagnosed Mr X in the terms recorded by the sentencing Judge:
Dr Nambiar made a formal diagnosis that you suffer from a severe borderline personality disorder and antisocial personality disorder through your abusive behaviour, including paedophilic and zoophilic deviant sexual behaviour occurring over many years with little remorse and rationalisation of those behaviours. Dr Nambiar thought you had a chronic form of post-traumatic stress disorder related to repeated abuse in your past, but did not think that you had a mental impairment defence.
These matters did not found charges but were part of the contextual background in which the appellant’s offending took place. It also illustrates the nature of the personality and persuasiveness of Mr X whom the sentencing Judge found had instigated and assisted the appellant’s offending.
The appellant’s personal background
The appellant came from a violent and abusive home, details of which are contained in two psychiatric reports of Dr Raeside, as well as a statement from Mr Wayne Marsland who witnessed the violence of the appellant’s father on the appellant at an early age. The appellant was the third of four children. His father was violent and a drunk and had tried to kill him with a pair of shears. The appellant was taken to hospital. The appellant felt very intimidated by his father. This violence was still happening at about the time of this offending. Dr Raeside in his report of 23 February 2007 concluded that at the time of the offending he estimated that the appellant “was probably functioning at an early adolescent level, perhaps around age 12.” This conclusion was unchallenged. It is against this background that the appellant’s offending needs to be considered.
The offences
The appellant accepted the version of events given by the three victims as to the circumstances of the offending. In each instance as I set out below, the appellant’s offending was instigated by Mr X, who solicited his three daughters to engage in the sexual conduct with the appellant, urged the appellant to engage in the sexual conduct and indeed personally sexually stimulated the appellant by performing physical acts on him.
First Offence
There are less details given by L of this offence than the later ones by her two sisters. L was aged about 13 at the time but had been sexually abused by her father since she was around six or seven. She was therefore sexually experienced. L said that her father, Mr X, drove her to the appellant’s house. At that point L knew from her father that she would having sex with the appellant. She remembered sitting in the kitchen and that her father “told me that [the appellant] doesn’t get to have girls, nobody wants him. That’s why he wanted me to have [the appellant]”. She said she could “remember going into [the appellant’s] bedroom, it was a single bed we had sex….[i]t seemed quite quick”. She could “remember that [the appellant] seemed quiet and apprehensive about the incident…[he] hardly spoke a word”. The appellant had vaginal intercourse with L. Mr X sat on a chair a couple of metres away from the bed.
Second and Third Offences
J was aged 14-15 years at the time of the offences. Her father had also subjected her to sexual abuse from the age of six or seven. She was also therefore sexually experienced. J gave a statement that she had been nagged by her father to have sex with the appellant. She said that she thought the appellant “was mentally challenged”. She said that prior to the day of the offending, Mr X took her to visit the appellant and his mother. She said that she thought “how boring ‘cos they both seemed retarded, it’s like, what am I doing here and then later, of course, I put it together that it was just a bit of –, introducing ourselves, this sort of thing”. J said that the appellant had “some sort of weird crush on me and he used to write me these love poems and stuff”. She stated that she used to throw them in the rubbish and laugh with her sisters. At the time of the offences she went with her father to the appellant’s house. Her father made her perform fellatio on the appellant. After that her father guided the appellant’s penis into her vagina because “I don’t think he was getting it right or something”. Her father just sat back and watched after that. J said that the appellant was quiet and “appeared to be inexperienced and also awkward certainly not resisting…”.
Fourth Offence
This offence occurred somewhere between 1977 and 1979 with M, who was then aged 14-15 years. She also had been the subject of sexual abuse by her father from about the age of eight. Her statement indicated that she was in her bedroom at home when two figures walked into her bedroom, one being her father and the other being the appellant. She said that the appellant “climbed into bed with [her], [Mr X] was coaxing him into having sex with [her]”. She said that her father stood next to the bed giving the appellant “some directions” as the appellant had problems getting an erection. She then said her father reached down between her legs and took hold of the appellant’s penis, he then masturbated the appellant and assisted the appellant’s penis into M’s vagina. All of the time “[Mr X] was offering “words of encouragement to [the appellant]”. She said that “this incident ended fairly quickly after an unsuccessful attempt, even though [the appellant] had achieved partial penetration.” M further said that “[d]uring the actual intercourse, I remember that … [the appellant] was like a ‘puppet’ taking instructions from his master”.
As can be seen from the above instances, the appellant, even to the victims, appeared to be a reluctant and inexperienced participant and subject to coercion and cajoling in a similar manner to themselves. J also recognised the appellant as being intellectually challenged. Both the daughters and the appellant were victims of Mr X’s sexually deviant behaviour.
Dr Raeside commented on the appellant’s offending behaviour in the following terms:
By his account this was instigated and arranged by his cousin and he felt powerless to change his circumstances, much as the female victims did as a result of their father’s influence. This was not simply due to the dominant aspects of his cousin, but also due to fear that his father would become involved and he would be subjected to further physical abuse. I note the victim’s accounts of the abuse they suffered from their father which was extensive, extremely deviant and clearly very traumatic. Their account of their abusive father is consistent with [Mr P’s] account of feeling unable to do much about it either….
However, according to your client’s account he appears to have been under significant duress at the time of the alleged offences, not simply due to the dominant aspects of [Mr X], but also due to his fear of retribution should his father become involved. He appears to have had significant emotional vulnerability as a result of long standing physical and emotional abuse, possibly associated with below average intellectual ability as well. [emphasis added]
The Judge’s approach
Remarks
The sentencing Judge in his sentencing remarks, particularly in relation to the offending, drew the following conclusion:
Dr Raeside said you appeared to have been under significant duress at the time of the alleged offences because of the dominant aspects of [Mr X] and your fear of retribution from your father.
That statement by Dr Raeside can only be based upon what you have told Dr Raeside yourself. The statement would have had more force were it not for the fact that your offending involved at least three discrete incidents which extend from March 1974 until September 1980. I am unable to accept that the duress of which you complained continued for such a lengthy period of time or was present on three separate occasions. [emphasis added]
In my opinion, the sentencing Judge erred in his approach to the element of duress and powerlessness which the appellant said he experienced at the time of the offending. In my view, the Judge wrongly concluded that the statement by Dr Raeside “can only be based upon what you have told Dr Raeside yourself”. Dr Raeside had before him not only what the appellant had said to him, but the statements from other witnesses about the violence that had been perpetrated by the appellant’s father on him, which violence was still occurring when he was 21 years old, being at a time during which the earlier offending took place. Dr Raeside also had the statements from the victims themselves, which supported the appellant’s reticence and apprehensiveness at the time of the offending. He also expressed an opinion that the appellant “had significant emotional vulnerability as a result of long standing physical and emotional abuse, possibly associated with below average intellectual ability as well”.
Further, by the time of sentencing, the Judge had before him additional graphic accounts of the physical violence that the appellant’s father had inflicted on the appellant. Such violence and emotional abuse frequently leaves scars and emotional vulnerability, as indicated in Dr Raeside’s report. In addition, Dr Raeside considered that the appellant had a problem of dealing with persons in authority and that he has been a “particularly vulnerable person to the influence of others throughout his life”.
Thus, the appellant’s offending occurred in a complex web of intra-familial sexual relationships between the appellant’s family and the family of Mr X in a background of violence by the appellant’s father on the appellant. It was a highly complicated situation which had not only an immediate effect, but also an aftermath. There was nothing improbable about the appellant’s expression of powerlessness at the time of the offending, which was brought about by the dominance of his cousin Mr X. This is something more than simply “instigation” of offending behaviour by Mr X. Further, there was nothing improbable about this powerlessness being further contributed to by fear of his father at the time offending. After all, the offending occurred within family and certainly Dr Raeside accepted that fear of his father was an aspect which affected his behaviour at the time.
Further, the sentencing Judge did not appear to adequately take into account Mr X’s specific physical conduct which was in a real and direct sense instrumental to the appellant’s offending. It was not simply “assistance”. Mr X masturbated the appellant and directed his penis into his daughter’s vagina and also gave him instructions on what to do.
In my view, the Judge failed to properly take into account Dr Raeside’s opinion that at the time of these offences, the appellant’s intellectual functioning was about that of a 12 year old, as the appellant’s counsel put it, “in the body of a 20 year old”. The younger victims appeared to regard themselves as being more mature than the appellant.
In summary, whilst these offences did not occur in circumstances which would give rise to a defence of duress, they did occur in circumstances where the appellant, who had an intellectual disability and functional age of a child of 12 years and was already in an emotionally vulnerable situation caused by his own father’s violence, was then coerced by a dominant cousin into having sex with his sexually experienced younger second cousins, who were themselves coerced into performing sexual acts on him. The appellant’s cousin, Mr X, not only instigated the contact, but actively participated in it by physically arousing the appellant to perform the acts.
In so far as the appellant was aware of the wrongfulness of his actions, the overall incestuous environment, in combination with all of the above factors would have been highly confusing. Here was the appellant’s assertive cousin cajoling him into conduct of a sexual nature with his cousin’s daughters. This is not an easy situation for such a vulnerable young man to cope with. As one of the victims said of herself, she was confused as to what was “right” as distinct from what was “wrong”. It would have been preferable for this aspect to have been the subject of a specific consideration by the psychiatrist, submissions of counsel and the Judge,[4] rather than having to draw inferences from all of the circumstances and the report of Dr Raeside. It is clear from Dr Raeside’s report that the appellant certainly now recognises the wrongfulness of his actions and the harm caused to the victims.
[4] R v Trimper [2006] SASC 304.
It is the combination of all of these circumstances which makes the offending in this case far less serious than the nature of the offences on their face, would tend to suggest. He was chronologically a few years older than the victims but functionally of lower age; he does not have paedophilic tendencies; he has neither before nor after committed any other offences; and it has now been some 30 years since that offending.
As Dr Raeside indicated in his report:
I do not believe that [Mr P] qualifies for a diagnosis of Paedophilia or any other sexual deviance. There is no evidence of the use of child pornography. His functional age at the time of the offending, the coercive influence from his more dominant cousin, and other factors are at odds with [Mr P] having primary sexual attraction to young girls. He has maintained adult `heterosexual relationships subsequently. There is no indication of any other offending, sexual activity, or even sexual attraction to young children subsequently.
Approach by sentencing judge to sentencing
The Judge when approaching sentencing, proceeded as follows:
In your case I start with the following notional sentences:
·For Count 8, carnal knowledge with L, a notional sentence of [imprisonment for] three years.
·For Count 9, indecent assault involving L, a notional sentence of imprisonment for 18 months.
·For Count 10, carnal knowledge with J, a notional sentence of imprisonment for three years.
·For Count 11, carnal knowledge with M, a notional sentence of imprisonment for three years.
Those notional penalties total imprisonment for 10 years and six months.
Having considered what the notional sentences for each offence should be, and taking into account your intellectual disability and the fact that you are likely to have been influenced by [Mr X] and the principle of totality, I determine one sentence pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 of imprisonment for seven years. I reduce that to imprisonment for 5 years and 3 months to give credit for your plea of guilty, the delay in bringing the matter to completion and your rehabilitation. I fix a relatively low non-parole period of 3 years.
This is a highly unusual and exceptional case by reason of the complex combination of features. In my view, the approach of the sentencing Judge to the process of sentencing produced a manifestly excessive sentence. This was a product of either commencing with a “notional sentence” which was too high or failing to later make sufficient reductions for the overall mitigating circumstances of the offending. I take into account what Bleby J said in R v McLintock (with whom Doyle CJ and Williams J agreed):[5]
I begin by reminding myself that different sentencing judges will inevitably arrive at different sentences, and that merely because the final figure fixed by any or all of the members of this Court may differ from that of the sentencing judge, does not mean that the appeal should necessarily be allowed. It must be shown that the penalty is outside the range that could properly and reasonably be imposed by any sentencing judge. I also remind myself that within the process of arriving at an appropriate sentence, different judges may have different starting points and may give different weightings or discounts for particular factors. The fact that my starting point or weightings may be different from that of the sentencing judge does not matter, and will not necessarily result in identification of error. What matters, for present purposes, is the final figure and whether it is manifestly excessive, not so much the route by which the sentencing judge arrived at the figure.
[5] [1998] SASC 6746, [14].
In this case it is difficult to discern precisely what the sentencing Judge took into account when arriving at the notional sentences, when he later made reductions to take account of matters which impacted on the circumstances of the offending, namely “intellectual disability” and “likely influence” by Mr X. Further, the two factors indicated by the sentencing Judge do not adequately reflect the mitigating effect of a combination of the appellant’s intellectual disability and functioning level with Mr X’s coercive involvement, together with his emotional vulnerability due to his father’s violence.
In my view, these factors impact heavily upon any starting point before deductions are then made for other factors, as indicated by the sentencing Judge, namely his plea, the delay in bringing the matter to completion and rehabilitation.
For these reasons, I consider that the sentence imposed was manifestly excessive and warrants the interference of this Court. The sentence should be set aside, and the appellant should be re-sentenced.
Taking into account the factors which in my view make this case unique, I consider that the following notional sentences are more appropriate given the circumstances of this offending:
Count 8      2 years (carnal knowledge)
Count 9      9 months (indecent assault)
Count 10   2 years (carnal knowledge)
Count 11   2 years, 3 months (carnal knowledge)
Total 7 years imprisonment
I consider it appropriate to impose one sentence of imprisonment pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). Taking into account the plea, the appellant’s considerable contrition and remorse, the time taken for these offences to be brought to completion and the rehabilitation and unlikelihood of re‑offending, in my view, that should be imprisonment for five years with a relatively low non-parole period of two years.
I note that the appellant has been in custody since 4 July 2007, which is now a period of three months. Accordingly, I would reduce both the head sentence and non-parole period by a further three months to reflect this time spent in custody. This would result in a sentence of four years and nine months’ imprisonment with a non-parole period of 21 months.
I will now consider the issue of suspension of that imprisonment.
Suspension of imprisonment
In his sentencing remarks, the sentencing Judge referred to the following aspects of what may be regarded as “personal factors” relevant to suspension. Those matters included:
·That the appellant was deeply sorry for the offending.
·That the appellant wrote to the victims through their lawyer indicating how sorry he was and that he was in the Judge’s view genuinely contrite.
·That he is not a persistent child sex offender. Referees described the appellant as being “kind, warm and generous with a strong sense of responsibility and ethics. A person who valued honesty, sincerity and personal loyalty”.
·That he was currently in a relationship, having lived with his present partner since March 2005.
In relation to this later aspect, the sentencing Judge said as follows:
I have read a letter of support from your partner, with whom you have been living since March 2005. I accept that you assist her in many ways and that your support is important to her. She said it would be devastating to her if you were not around. She needs your assistance to care for your child. She also relies on you financially. The prosecutor has pointed out that you are not the biological father and the child is not in your custody.
I am concerned by the sentencing Judge’s failure to refer to an important relevant aspect, namely the “reunification program” which was being undertaken by the appellant and his partner. There is only a slim reference in the sentencing remarks to the program and it appears then to have been minimised, as indicated by the Judge’s reference to the fact that the appellant was “not the biological father and the child is not in your custody”.

The sentencing Judge had before him a report from Mr Bruinsma the Director of Patronus Counselling Services dated 30 March 2007. This document together with other documentation, indicated that the appellant’s current partner has a Down Syndrome child who is presently in the care of Families SA. The appellant’s partner and the appellant were at the time of sentencing, undergoing a process to assist the partner to be reunified with the child. For over approximately a 12 month period the appellant had been assisting with this reunification process. The Down Syndrome child is two years of age and just prior to the appellant’s imprisonment, the appellant had been involved in obtaining access to the child for more than 21.5 hours per week, including overnight stays, Friday afternoons, and this was soon to be extended to include a weekend. The appellant’s assistance is essential for the reunification program as the partner has very poor vision. A report indicates that without the appellant, it would “potentially jeopardise the reunification process”.
Section 10(1)(n) of the Sentencing Act requires the court to have regard to the effect of imprisonment upon dependants, which would include the appellant’s partner and the child. In my view, this was not a matter which could simply be put to one side on the basis of a recency of relationship and that the appellant was not the biological father of the child. I consider that the Judge should have had greater regard to this aspect in the sentencing.
In relation to the question of suspension of the sentence, the Judge concluded that:
Despite all the arguments put by your counsel for the suspension of the sentence, I have come to the conclusion that the offending was too serious. Your offending involved three separate victims and spanned several years. Your current relationship is comparatively recent, having been formed at about the time that you were apprehended and you are not the biological father of the child who is actually in the care of Families SA. I cannot find good reason to suspend the sentence. It is regrettable that the sentence will cause hardship for your partner, but, as I have said, deterrence and the protection of children are paramount.
In my view, there is uniquely, “good reason” to suspend the sentence in this case. This is not a case where the seriousness of the offending should outweigh all of the other circumstances personal to the appellant. In addition to factors to which I have already referred when discussing the circumstances of the offending, this case is also unusual, in that the victims themselves clearly appreciated the coercion which both themselves and the appellant were subjected to. Unlike many offences against young children, the circumstances of this offending does not suggest that general deterrence should be an overriding factor. Furthermore, the appellant’s history in neither having offended before nor since, together with the report of Dr Raeside, indicates that specific deterrence is a remote issue. To impose an immediate custodial sentence some 30 years after the offending in the appellant’s circumstances, is a manifestly excessive and crushing sentence. I also note that if the appellant were imprisoned, it is Dr Raeside’s opinion that the appellant:
Would be at significant risk of further emotional harm whilst in custody due to his underlying vulnerabilities, particularly around dominant men. Undoubtedly his depression and anxiety would worsen and he would require early medical and psychiatric review.
In this case, it is not simply one factor but the combination of all the factors which in my view amounts to “good reason” to suspend the sentence. I cannot but again stress the unique combination of circumstances which in my view should result in an unique and merciful approach to sentencing in this case.
Conclusion
For these reasons, I would make the following orders:
1The appeal be allowed.
2The sentence imposed in the District Court be set aside, and in its place the appellant be sentenced to imprisonment for four years and nine months with a non-parole period of 21 months.
3The sentence of imprisonment be suspended upon the condition that the appellant enter into a bond to be of good behaviour for a period of three years. This includes the condition that he be under the supervision of a Community Corrections officer for two years, whose directions he shall obey, which will include undertaking such psychological therapy or attendance at such programs as may be directed from time to time.