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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v P, LWJ

Details

AGLC: R v P, LWJ [2007] SASC 361
Case: [2007] SASC 361
Decision Date: 12 October 2007

CaseChat Overview and Summary

In the case of R v P, LWJ, the appellant, Mr P, appealed against the sentence imposed by the District Court for four sexual offences committed against three young female victims. These offences were committed in the mid-1970s and involved the appellant's first cousin, Mr X, who was the father of the victims. The offences included carnal knowledge, indecent assault, and unlawful sexual intercourse. The appellant pleaded guilty to all charges. The primary legal issues for the court were whether the sentence imposed by the District Court was manifestly excessive and whether the judge erred in refusing to suspend the sentence.

The Court of Appeal determined that the District Court judge had not adequately considered the conduct of Mr X, who was the dominant figure in instigating and assisting the appellant's offending. Additionally, the court found that the judge did not sufficiently weigh the appellant's intellectual disability, which was a mitigating factor. The unusual circumstances of the offending, including the appellant's young age at the time and his traumatic background, were also taken into account. The Court concluded that the sentence was manifestly excessive and that there was good reason to suspend the sentence due to the appellant's rehabilitation and the lengthy period since the offences.

The appeal was allowed, and the sentence was re-imposed as a single term of imprisonment for four years and nine months, with a non-parole period of 21 months. The sentence was suspended, effective from the date the appellant was taken into custody. The reasoning for the suspension included the appellant's demonstrated rehabilitation and the unique circumstances of the case.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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