R v Peter Strusi Nos. SCCRM 94/421 and 94/489 Judgment No. 4885 Number of Pages 4 Criminal Law and Procedure

[1994] SASC 4885

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MOHR(2) and OLSSON(3) JJ

CWDS
Criminal law and procedure - Offences against the person - unlawful sexual intercourse with niece aged 13 years - verdict not unsafe or unsatisfactory.

Criminal law and procedure - Sentence - unlawful sexual intercourse with niece aged 13 years on two successive nights - man aged 36 years with no prior convictions - below average intelligence - personality problems - sentence of 5 years' imprisonment with non-parole period 2 and 1/2 years excessive - on appeal sentence 2 and 1/2 years' imprisonment with non-parole period l8 months substituted.

HRNG ADELAIDE #DATE 6:12:1994

Counsel for appellant:     Mr K V Borick

Solicitors for appellant:    J Adam Richards

Counsel for respondent:     Mr B J Jennings QC

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 KING CJ This is an appeal against the appellant's conviction by verdict of a jury in the Supreme Court of two crimes of unlawful sexual intercourse with a girl of 13 years of age.

2. The appellant was charged with the rape of the girl on the two occasions in question and the alternative charges were of unlawful sexual intercourse.

3. He was found not guilty of rape on each of the charges, but was found guilty on the two charges of unlawful sexual intercourse.

4. The alleged victim was aged 15 years at the time of trial, but was aged only 13 years at the time of the incidents which are the subject of the charges. She is the niece of the appellant. She alleged that there had been a course of sexual conduct between herself and the appellant extending over a period of about four years from the age of 7 to 11 on occasions when she was at her grandparents' home where the appellant was staying. This course of conduct involved, on her account, deep penetration of her vagina and it occurred on many occasions, virtually every weekend - and she agreed in cross-examination that it could have been as many as 200 occasions. There was then a period of time when she did not go to her grandparents' house, but in January 1993 when she was 13 years of age, she stayed at the house - her grandfather by then having died - with her grandmother during the school holidays. The appellant was staying there. Her evidence was that one night during her stay at her grandmother's home, the appellant asked her for sexual intercourse. She refused. He endeavoured to persuade her. He offered her money. Ultimately, she found herself in his bed and sexual intercourse occurred. On the next night, the appellant, while he and the alleged victim were in the bedroom together, showed a pornographic movie. He again asked her for sex. She refused. He offered her money and he then grabbed her and placed her on the bed and had sexual intercourse with her.

5. The appellant when questioned by the police denied sexual intercourse. He did, however, admit to kissing and cuddling the alleged victim while he and she were in night attire and he admitted to offering her money for that type of activity.

6. The appellant did not give evidence at the trial.

7. Mr Borick, who appeared for the appellant before us, laid stress on what he described as the oddity in the verdicts returned by the jury. I must say that the fact that the jury returned a verdict of not guilty of rape but guilty of unlawful sexual intercourse does not strike me as being a matter for concern. I think there was in the girl's account of the two incidents sufficient reason for a reasonable juror to entertain a doubt on the issue of consent or, at least, on the issue of the appellant's perception of consent; and I think it's entirely understandable that a reasonable jury would have had a doubt about rape, while nevertheless accepting beyond reasonable doubt that sexual intercourse had taken place.

8. There was also, however, medical evidence in the case. The alleged victim's hymen was intact. There was a conflict in the evidence of experts as to the capacity of the hymen to repair spontaneously following sexual intercourse with a young girl and I think it must be said that the medical evidence on the point was left in an inconclusive state at the end of the trial. The appellant was shown by expert evidence to have a small penis and an excess of abdominal fat and the evidence was that he would be incapable of effecting deep penetration, certainly without the co-operation of the female whom he was seeking to penetrate.

9. Obviously, that medical evidence is something which the court has had to consider on the issue as to whether the verdicts are safe verdicts. It must be remembered, of course, that the alleged victim was only 13 years of age at the time of these two offences, and I think that it was open to a reasonable jury to feel that her description of the acts of intercourse as deep penetration may not have been an accurate description.

10. There does not appear to me to be anything unreasonable about a jury accepting her story that the appellant did penetrate her vagina, but at the same time considering that her description of it as "deep penetration" might not accurately depict what occurred. It must be remembered that the girl's evidence was uncontradicted. The appellant gave no evidence, and whilst notwithstanding the lack of contradiction, it remains necessary for the jury to be satisfied beyond reasonable doubt as to the truth and accuracy of the girl's version, a reasonable juror could certainly reach that conclusion more readily than if her version had been denied on oath by the appellant.

11. Notwithstanding the medical evidence upon which stress has been laid, I have reached the conclusion that it was open to a reasonable juror to be satisfied beyond reasonable doubt about the truth of the girl's version that the appellant had had sexual intercourse with her on the two occasions in question. In my opinion, therefore, the appeal against conviction should be dismissed.

12. There is also an appeal against sentence. The learned judge imposed a sentence for the two crimes of imprisonment for five years with a non-parole period of two years and six months commencing on 6 October 1994. His Honour expressly said that he was ignoring the alleged background of offending when the victim was between the ages of seven and eleven, and that he focussed entirely upon the two incidents which were the subject of the charges.

13. I think that that was the proper course to take, having regard to the fact that the incidents alleged to have occurred whilst the girl was under the age of 12 years were under the statute more serious crimes than the two that were charged, and to the fact that the appellant had not been charged with those alleged earlier crimes. The maximum sentence for unlawful sexual intercourse with a girl of this age is imprisonment for seven years. It will be seen, therefore, that the head sentence of five years is a high proportion of the maximum sentence.

14. It must, of course, be remembered that the appellant has been sentenced not for one crime of unlawful sexual intercourse, but for two crimes of unlawful sexual intercourse. Nevertheless, I think the head sentence must be regarded as a severe sentence. There are, of course, serious aspects of the case. The relationship between the appellant and the girl is an aggravating aspect of the matter. He was her uncle and took advantage of her visit to her grandmother's home to commit these crimes.

15. He was in a position of trust as regards his young niece. He abused that trust by actively seducing her, and indeed by offering her money and showing her a pornographic movie. There are some mitigating circumstances. The appellant does have the physical problems to which I have already referred, and these appear to have had an effect upon his life and personality. He is described by the psychologist who examined him as an immature personality and and is a person of below average intelligence. He has no prior convictions.

16. The incidents, serious as they were, occurred in close proximity to one another, that is to say on two successive nights. They could be looked upon as part and parcel of the same general incident. When that is appreciated against the background of lack of prior offending and the defects in the appellant's personality, it seems to me that the sentence of five years imprisonment assumes the character of a manifestly excessive sentence. In my opinion, it should be reduced and I would reduce it to imprisonment for two and a half years. I would make an adjustment to the non-parole period which the learned trial judge fixed at two years and six months, and would reduce that to 18 months.

17. In my opinion, therefore, the appeal against sentence should be allowed. The sentence should be reduced to imprisonment for two and a half years with a non-parole period of 18 months, both commencing on 6 October 1994.

JUDGE2 MOHR J I agree.

JUDGE3 OLSSON J I also agree.