R v PILLING - [2010] SASCFC 28

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v PILLING
[2010] SASCFC 28
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Kelly)
27 August 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
Application by Director of Public Prosecutions for permission to appeal against sentence – respondent pleaded guilty to one count of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) – sentenced to imprisonment for three years and four months with a non-parole period of one year and eight months – whether sentence manifestly inadequate – whether sentence reflects error of principle.
HELD: permission to appeal granted – appeal allowed – sentence increased to six years with a non-parole period of three years.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Law (Sentencing) Act 1988 (SA) s 10(4) and s 29D, referred to.
R v D (1997) 69 SASR 413, applied.
R v Wilson [2009] SASC 92; R v Clifford [2004] SASC 344; Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; R v A, JW (2001) 80 SASR 246, discussed.

R v PILLING
[2010] SASCFC 28
Court of Criminal Appeal: Duggan, Gray and Kelly JJ

DUGGAN J: I would give permission to appeal against sentence, allow the appeal and set aside the sentence imposed in the District Court.
I would impose a sentence of imprisonment for six years and fix a non‑parole period of three years.
I agree with the reasons of Kelly J.
GRAY J:
In my view permission to appeal against sentence should be granted and the appeal allowed. I would resentence the defendant to a term of imprisonment of six years and fix a non-parole period of three years. I agree with the reasons of Kelly J.
KELLY J:
Introduction
This is an application by the Director of Public Prosecutions for permission to appeal against a sentence imposed in the District Court on 11 June 2010.
The respondent was convicted on his plea of guilty to one count of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty prescribed for this offence is life imprisonment.
The Judge sentenced the respondent to a term of imprisonment of three years and four months and fixed a non‑parole period of one year and eight months.
The Director applies for permission to appeal on the basis that the sentence is manifestly inadequate and that it fails to establish or maintain appropriate standards of punishment in relation to the offence of persistent sexual exploitation of a child. The respondent opposes the application and says that even though the sentence may have been merciful it was within the discretion available to be exercised by the sentencing Judge. It is not one of those rare and exceptional cases justifying the granting of permission to the Director.
Background
The respondent at the time of the offending was aged between 66 and 68 years. The victim was his step grand‑daughter. Most of the offending occurred in the home where the victim lived with her family during occasions when the respondent was visiting. On a small number of occasions some offending occurred at the respondent’s home during occasions when the child was visiting. The offences were committed at night when the respondent came into the child’s bedroom on the pretext of either putting her to bed or reading her a story.
The offending consisted of the touching of the victim on the vagina, on her breasts, on her anus, causing the victim to masturbate the respondent’s penis, and on one occasion the respondent tried to place his penis in the child’s mouth. At times the respondent licked and bit the victim’s nipples, on other occasions he rubbed the victim’s vagina to an extent that she experienced pain there for the next couple of days. The sexual interference of the victim by the respondent occurred approximately every two weeks, sometimes every week. As the child grew older the touching became harder and went on for longer. Sometimes episodes of interference lasted for up to 20 minutes.
The offending ceased when the child eventually told her father. The respondent thereafter voluntarily attended at a police station where he made admissions, although it appears that his attendance at the police station was in response to being told by the mother of the child that it was intended to make a statement to the police about what had occurred.
Nevertheless, when the respondent was first arraigned on a single count of persistent sexual exploitation of a child he pleaded guilty. The matter was then listed for a disputed facts hearing on one aspect of the factual basis alleged by the prosecution. The disputed matter concerned the range of dates within which the offending occurred and also when the offending first began. It was made clear that the only matter disputed by the respondent was this aspect of the prosecution case.
After hearing evidence from the complainant the trial Judge did not accept her evidence as to when the offending began and ruled that he would sentence the respondent on the basis of the admissions made by him in his interview with the police. Accordingly, the respondent was to be sentenced on the basis that the offending began when the complainant was aged approximately nine to nine and a half and ceased when she was approximately eleven or eleven and a half.
In the circumstances the respondent was entitled to a discount for his early plea of guilty and his cooperation with the authorities.
Issues on Appeal
It was argued on appeal that the learned sentencing Judge failed to accord sufficient weight to the nature and extent of the respondent’s offending.
It was submitted that the respondent’s offending was not a number of distinct and isolated offences over a short period of time, but rather a course of conduct over a relatively lengthy period of two and a half years in relation to a very young child. In these circumstances the Judge ought to have applied the principles in R v D (1997) 69 SASR 413. In addition to the failure to recognise the seriousness of the offending, the Director also submitted that the sentencing Judge placed too much weight on the respondent’s previous good character.
In these circumstances it was said that the starting point for the head sentence of four years and six months imprisonment failed to reflect the real gravity of the respondent’s offending, the breach of trust, the gross disparity in ages between the respondent and the complainant, the extended period of the offending and the psychological damage to the child.
The Judge’s Sentencing Remarks
The learned sentencing Judge commenced his sentencing remarks by noting that the respondent was to be sentenced on the basis of the admissions made by him in his record of interview, namely that the offending began when the child was nine to nine and a half years old.
He described the actual offending in the following way:
The conduct, comprising of persistent sexual exploitation, to which you have pleaded guilty included touching the victim on her vagina, breasts and nipples, kissing her on her breasts and nipples, rubbing of the buttocks, touching her anus and causing her to touch your penis.
His Honour noted that although the respondent initially claimed that he did not instigate the behaviour and in that respect had attempted to minimise his involvement, nevertheless in more recent times he had accepted responsibility for his actions. He noted that the respondent voluntarily attended at Owenia House which specialises in treating sexual offenders. A psychologist’s report was before the sentencing Judge. That report was quite positive about the respondent’s prospects of rehabilitation, however the author noted that the respondent required further treatment as he has a tendency to blame others for his behaviour.
The sentencing Judge then said:
I have taken into account the character references tendered on your behalf. They attest your previous good character. I accept that the offending is out of character. I also note that your wife remains supportive of you. You have no previous convictions of any consequence. After 70 unblemished years this offending has now left a very large blot on what was a clean copy book.
The sentencing Judge acknowledged that he was required to take into account the provisions of s 10(4) of the Criminal Law (Sentencing) Act 1988 (SA) which provide that the need to protect young children from sexual predators is a primary policy of the criminal law.
He then indicated that the starting point for the head sentence was four years and six months and imposed the sentence.
Discussion
There are a number of aspects about the respondent’s offending which call for comment. The Judge’s account of the offending was quite brief and bland. It did not, in my view, reflect the real gravity of the offending. The Judge did not refer at all to the fact that on many of the occasions when the respondent sexually interfered with the complainant the assault was a prolonged one sometimes lasting up to 20 minutes. Nor did he refer to the uncontested fact that the offending occurred as frequently as every two weeks sometimes every week over an extended period.
The offending involved a gross abuse of trust given the respondent’s relationship as step grandfather to the child. It was that relationship which gave him access to the child in her most vulnerable state in bed at night time. The offending has had a catastrophic effect on the life of the victim. Although the sentencing Judge noted that the respondent was 70 years old at the date of sentencing, he made no reference at all to the fact that the respondent, when the offending began, was already 66 years old. The offending apparently only ceased after the complainant told her father what had been happening in late December 2008 or early January 2009.
There is also some justification for the complaint that the Judge placed too much weight on the respondent’s previous good character. This was not an isolated incident in an otherwise blameless life. The offending was prolonged and in light of those circumstances the significance of the respondent’s previous good character was diminished; see R v Wilson [2009] SASC 92, R v Clifford [2004] SASC 344 at [16]. The sentencing Judge appears to have overlooked this when commenting that he accepted that the respondent’s offending was out of character.
Since the case of R v D the Parliament has enacted s 29D of the Criminal Law (Sentencing) Act 1988 (SA) which states:
29D—Sentencing standards for offences involving paedophilia
(1) The Parliament declares that—
(a)the 1997 amendment of sentencing standards reflected an emerging recognition by the judiciary and the community generally of the inherent seriousness of offences involving paedophilia; and
(b)the reformed standards should be applied to offences involving paedophilia committed before or after the enunciation of the 1997 amendment of sentencing standards (or committed in part before, and in part after, the enunciation of the 1997 amendment of sentencing standards).
(2) In this section—
1997 amendment of sentencing standards means the change to sentencing standards enunciated in R v D (1997) 69 SASR 413;
offences involving paedophilia means all offences to which the 1997 amendment of sentencing standards is applicable (whether individual sentences for the offences have been, or are to be, imposed or a global sentence covering a series of offences or a course of conduct involving a number of criminal incidents).
reformed standards means sentencing standards as changed by the 1997 amendment of sentencing standards.
[Footnotes omitted]
Whatever criticism may be made about the wording of that section, it is, in my view, a plain attempt to give legislative efficacy to the remarks of the Court of Criminal Appeal in R v D. Those remarks have direct relevance to the circumstances of this offending.
This was an offence of persistent sexual exploitation which requires the Court to take into account the whole course of offending. Although the sentencing Judge was referred to R v D there is nothing to indicate that he took it into account when fixing a starting point for the head sentence of four years and six months. When regard is had to all of the circumstances of this case I consider that the criticism that the sentence fails to reflect the totality of the offending is justified. In my view the overall circumstances of this case called for a more severe sentence than that imposed by the sentencing Judge.
I bear in mind the limits which apply on an application by the Director of Public Prosecutions for leave to appeal against sentence. See Everett v The Queen (1994) 181 CLR 295, R v Nemer (2003) 87 SASR 168.
Nevertheless I consider this is a case where, if the sentence is permitted to stand, it would tend to erode appropriate standards of punishment for offences of persistent sexual exploitation of children. The offending was serious and the guidance given by this Court in R v D, and R v A, JW (2001) 80 SASR 246 should have been applied. In the circumstances of this case I do not consider it sufficient that this Court simply identify the error and leave the sentence to stand. I would give permission to the Director to appeal. Bearing in mind the constraints which apply to the Court when resentencing on a successful Crown appeal, I would set aside the sentence imposed by the District Court Judge and impose in its place a sentence of six years imprisonment. I would fix a non‑parole period of three years.