R v Pedler

[2018] SASCFC 6

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PEDLER

[2018] SASCFC 6

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Doyle)

7 February 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - OTHER MATTERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - GENERALLY

Appeal against sentence. The appeal amounts to a request to re-sentence the appellant for the balance of a group of six offences, after this Court previously quashed one of two convictions which were under appeal.

All six offences were charged on separate instrument. For this reason, and because of the way the Sentencing Judge structured the sentence for all six offences, s 354(1) of the Criminal Law Consolidation Act 1935 (SA) did not, on its terms, apply. Accordingly, it was necessary that the appellant appeal against the whole sentence.

In re-sentencing the Court did not find it necessary to go behind the individual terms indicated by the Judge for each offence.

Held (The Court): Appeal allowed. The whole of the sentence imposed by the Judge is set aside and a fresh sentence imposed.

Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 354, referred to.
R H McL v The Queen (2000) 203 CLR 452; R v Becirovic (No 2) [2018] SASCFC 3; R v Pedler [2017] SASCFC 108, distinguished.

R v PEDLER
[2018] SASCFC 6

Court of Criminal Appeal:  Vanstone, Kelly and Doyle JJ

THE COURT.

1. This appeal amounts to a request that this Court re-sentence the appellant for the balance of a group of six offences, after the quashing of the conviction for what was the most serious offence in the group.

2. Although the learned Sentencing Judge indicated how he constructed the sentence, his Honour (implicitly) used s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose a single penalty. Consequently, when this Court quashed one, only, of the two convictions under appeal, that part of the penalty attaching to it could not be readily disentangled from the single sentence. The Court indicated that, should the appellant be advised to file an appeal against the sentence, an extension of time within which to appeal would be granted.

3. A notice of appeal was filed on 22 September 2017.  The drafting of the appeal notice is imperfect in several respects. For instance, it is not clear what order is the subject of appeal, or what are the grounds of appeal. The appeal is, incorrectly, presented as being not in need of a grant of permission. Nonetheless, the present coram is the same as that which upheld, in part, the earlier appeal against conviction and we are content to dispose of the matter on its merits. We shall treat this as an appeal against the whole of the sentence imposed by the Judge on 27 July 2017 and grant an extension of time within which to appeal.

   Background

4. In order to better explain the course this matter has taken, it is necessary to set out the entirety of the offences for which the appellant was sentenced. Each was charged on separate instrument. That is a matter of significance, because, while s 354(1) of the Criminal Law Consolidation Act 1935 (SA) gives an appeal court power to deal with the sentence for a surviving offence where it quashes the conviction for another offence, that subsection contemplates a situation where the offences are charged in a single information. (Therefore, the circumstances facing this Court are different from those in R H McL v The Queen (2000) 203 CLR 452 and R v Becirovic (No 2) [2018] SASCFC 3.) Moreover, in the present case the other offences the subject of conviction and sentence were not, earlier, before this Court at all. The instruments and charges were:

(a)	DPP information dated 07.12.15	Aggravated indecent assault against ‘F’
(b)	DPP information dated 03.02.15	Aggravated indecent assault against ‘M’
(c)	Police information dated 24.11.15	Possession of child pornography
(d)	Complaint dated 09.07.15	Breaching bail
(e)	Complaint dated 30.03.16	Breaching bail
(f)	Complaint dated 30.03.16	Cultivating cannabis

1. An offence of aggravated indecent assault carries a maximum penalty of imprisonment for 10 years. The maximum penalty for possessing child pornography is imprisonment for five years. The breaching bail offences attracted a maximum penalty of two years imprisonment or a fine of $10,000. The offence of cultivating cannabis carries a maximum penalty of two years imprisonment, or a fine of $2,000, or both.

2. The offence which we have labelled (a) was plainly the most serious offence of the group. F was aged nine years when it occurred. She gave evidence that the appellant, her uncle, removed her from her bed and took her to the living room where he was to sleep that night.  She awakened to find that the appellant had turned her so that she was face up.  He then pulled down her pyjama bottoms revealing her knickers, and took a photograph of her “underwear”. This incident was said to have occurred against a background of other uncharged occasions when he touched her in the area of her waist and abdomen, near her vagina.  This was the conviction quashed by the Court: R v Pedler [2017] SASCFC 108. No re-trial was ordered. In relation to that offence the Judge indicated a sentence of five years imprisonment. In respect of the other offence of aggravated indecent assault the Judge indicated a sentence of one year’s imprisonment. This offence was against F’s brother M. He was then aged eight years. M gave evidence that at a time when the appellant was staying at M’s home, he came into the bathroom when M was in the bath, told M to stand up, and “grabbed my willy and holded it tight and then pulled it”. This was the only allegation made by M. For the pornography offence the Judge indicated a sentence of eight months and two weeks imprisonment, having given credit for the plea of guilty. The Judge ordered that those three sentences be accumulated, to give a total of six years, eight months and two weeks imprisonment.

3. In relation to the two offences of breaching bail the Judge indicated a single sentence of imprisonment for two months (having given discount for the pleas of guilty) and for cultivating cannabis, he fixed a sentence of three months and two weeks imprisonment, again having allowed credit for the guilty plea.  He ordered that the sentences for this trio of offences be served concurrently with the sentences for the sexual offences. 

4. The Judge then deducted two weeks to represent time which the appellant had spent in custody in August 2014. It is to be noted that the effect of making such a reduction at this point was that, at least for the sexual offences, it was no longer possible to isolate any particular term of imprisonment. The Judge then fixed a non-parole period of four years to run from 18 July 2017.

   Arguments on Appeal

5. There is no complaint made at this stage by the appellant about the starting points determined by the Judge or about the discounts he gave in relation to those offences to which the appellant pleaded guilty. The appellant accepts that in ordering a degree of concurrency the Judge had regard to the principle of totality. However, the appellant argues that credit should have been given for an extended period which the appellant spent on home detention bail both before and after trial.

6. Ms Boord, for the respondent, argues that, since this Court is to sentence afresh, it should take the opportunity to fix a sentence for offence (b) which is higher than the term of one year indicated by the Judge. She puts that, although the incident giving rise to the charge was brief and isolated, it was very invasive and was committed by a man who had significant prior convictions for sexual offences. Noting that the sentences for the two sexual offences were to be served consecutively, Ms Boord argues that the disparity between them was so marked as to indicate that the Judge must have applied the totality principle in settling on the one year period.

   Consideration

7. There is some force in Ms Boord’s argument that the sentence for offence (b) might have been fixed as low as one year only because it was to be cumulative upon that for offence (a). While the Court takes the view that it would be open to it to fix a sentence higher than the period indicated by the Judge for offence (b), it has decided not to do so. The Court notes that M’s evidence was described by the Judge as being given in a “matter-of-fact” way and that no victim impact statement was provided by M. The Judge was in a good position to assess the seriousness of the offence, having seen M’s evidence. As mentioned, the offence was isolated. While a sentence higher than one year would arguably have been appropriate if the offence stood alone, we consider that it was within the available range and we are not inclined to increase it.

8. Indeed, in relation to the other offences, having a general idea of the tenor of the facts of the offences which were not on the Director’s informations and having heard submissions, the Court considers that it is appropriate in re-sentencing to use similar starting points and similar discounts to those determined by the Judge.

9. The Judge’s order that the sentences for breaching bail and cultivating cannabis be served concurrently with the sexual sentences raises different issues. The Judge did not explain why the order for concurrency was made, but it is easy to infer that this was done having regard to the fairly lengthy total sentence to be served for the sexual offences, particularly offence (a), and to the principle of totality. The appellant concedes as much. The removal of the most serious sexual offence from the equation demands a reconsideration of the question of concurrency.

10. It is true that the appellant spent an extended period on home detention bail prior to sentence. Whether a judge gives credit in sentencing in recognition of the deprivations associated with home detention bail is a matter of discretion.  Affecting the exercise of that discretion will be factors such as the terms of the home detention bail and the response shown to it. In circumstances where the appellant was twice convicted for breaching the terms of his bail and also committed the cultivating cannabis offence while subject to the bail agreement, the Judge’s decision not to give credit is readily understandable. We would take the same attitude. That is not to punish the appellant twice over for such behaviour, but only to decline to give him any additional benefit related to that period on bail.

11. We turn back to the matter of concurrency. The quashing of the conviction which led to the longest term of imprisonment leaves little or no room for the principle of totality to operate in relation to the remaining terms. The total of the remaining terms is not of sufficient magnitude to justify any reduction. There is no other reason to order any concurrency. We note that the two breaches of bail attracted only a single sentence in any event. The remaining offences are quite distinct in nature and are not linked in any other way so as to call for an order that any of them be served concurrently.

12. Allowance for two weeks spent in custody in 2014 should be attached to a specific sentence. We shall allow for it in relation to offence (c).

    Conclusion

13. The quashing of the conviction for what we have referred to as offence (a) called for the setting aside of the sentence imposed for that count; but not the non-parole period, which had been fixed in relation to all six offences. Since none of the other five offences for which sentence had been imposed were charged on the information containing offence (a), s 354 of the Criminal Law Consolidation Act 1935 (SA) did not, on its terms, apply. Therefore it was necessary to consider the whole of the sentence by way of an appeal against sentence.

14. We have approached the task as an exercise in re-sentencing for the five remaining offences.  However, in the final result, it has not been necessary to go behind the individual sentences determined by the Judge. We agree with counsel for the appellant that those sentences are appropriate.

15. The orders we make are:

    1.The time within which the appeal may be filed is extended to 22 September 2017;

    2.     The appeal is allowed;

    3.The whole of the sentence imposed on the appellant on 27 July 2017 is set aside;

    4.In its place the appellant is sentenced for the remaining offences as follows:

    -       Aggravated indecent assault of M: one years imprisonment

    -       Possessing child pornography: eight months imprisonment

    -       Breaching bail (two offences): two months imprisonment

    -       Cultivating cannabis: three months, two weeks imprisonment

    5.All sentences will be served consecutively;

    6.In relation to the total head sentence of two years, one month and two weeks, a non-parole period of 15 months and two weeks is set;

    7.The sentence will be deemed to have commenced on 18 July 2017.