R v Pottage - [2010] SASCFC 75

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v POTTAGE
[2010] SASCFC 75
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice David and The Honourable Justice Peek)
21 December 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Appeal against sentence – appellant pleaded guilty to two counts of unlawful sexual intercourse with a person under 17 years contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) – appellant could have been charged under s 49(1) as the victim was aged 8 years – judge proceeded to sentence on the basis of the maximum penalty under s 49(1) instead of s 49(3) – whether judge erred in proceeding with regard to the wrong maximum penalty – whether judge erred in taking into account time spent in custody – whether judge correctly declared the appellant a serious repeat offender due to prior convictions.
Held: judge erred in proceeding to sentence with regard to the wrong maximum penalty and erred in making allowance for time spent in custody – appeal allowed – sentence considered afresh – appellant should be declared a serious repeat offender – new head sentence of nine years with a non-parole period of seven years and two months.
Criminal Law Consolidation Act 1935 (SA) s 49; Criminal Law (Sentencing) Act 1988 (SA) s 20B, s 18A, referred to.

R v POTTAGE
[2010] SASCFC 75
Court of Criminal Appeal: Duggan, David and Peek JJ

DUGGAN J: I agree with the reasons prepared by David J.
In my view the appeal should be allowed and the sentence imposed by the District Court Judge set aside.
I agree with the orders proposed by David J.
DAVID J: This is an appeal against sentence. There are two aspects to the appeal. Firstly, a complaint that the sentence was manifestly excessive and, secondly, a complaint that the sentencing Judge erred in declaring that the appellant be declared a serious repeat offender pursuant to s 20B of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”).
The charges
The appellant pleaded guilty to two counts of unlawful sexual intercourse. I set out the information:
First Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Timothy Richard Pottage on the 29^th day of March 2009 at Kudla, had sexual intercourse with [the complainant], a person of the age of 8 years, by inserting a finger into her vagina.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
Timothy Richard Pottage on the 29^th day of March 2009 at Kudla, had sexual intercourse with [the complainant], a person of the age of 8 years, by casing her to perform an act of fellatio upon him.
I also set out the relevant sections of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”), namely, s 49(1) and s 49(3):
49—Unlawful sexual intercourse
(1)A person who has sexual intercourse with any person under the age of 14 years shall be guilty of an offence and liable to be imprisoned for life.
(3)A person who has sexual intercourse with a person under the age of seventeen years is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
It is to be noted that, although the appellant was charged and pleaded guilty to an offence under s 49(3) of the CLCA, pursuant to the admitted particulars he could have, and indeed should have, been charged with offending under s 49(1) of the CLCA.
In his sentencing remarks, the sentencing Judge referred to the maximum penalty as that of life imprisonment, understandably confusing the difference between s 49(1), under which the appellant should have been charged, and s 49(3), under which he was charged and pleaded. In doing that, the sentencing Judge erred and the respondent before this Court has conceded that this fundamental error, even though it was contributed to by all parties at sentence, should result in the appeal being partially allowed and this Court resentencing the appellant.
However Ms Mealor, for the respondent, argues at least theoretically that that part of the sentencing process, namely the making of a declaration under s 20B of the Act, can remain intact.
In my view, the whole of the sentence including the declaration must be overturned. The basic mistake of setting the sentence against an erroneous maximum penalty clearly flows through to the question of whether the appellant should be declared a serious repeat offender. That being so, I turn to the question of resentencing including the question of whether the appellant should be declared a serious repeat offender.
The original sentence and background facts
Although this now becomes a matter of resentencing, it is instructive to look at the approach taken and basis for the sentence and declaration imposed by the sentencing Judge.
On the day of the offending (20 March 2009) the victim was an eight year old girl. The appellant inserted a finger into her vagina (count 1) and then forced her to perform an act of fellatio upon him (count 2) (“the present offending”). These offences were committed in the presence of the victim’s nine year old brother.
On 19 November 2007 the appellant was sentenced in the District Court for one count of aggravated serious criminal trespass in place of residence and one count of indecent assault (“the earlier offending”). The sentencing Judge on that occasion clearly summed up the earlier offending in her sentencing remarks when she said:
At about 4 o’clock in the morning on 23 April 2004, you went to a house at Hampstead Gardens. You walked around the back and found the back door was unlocked. You walked through the kitchen, looked into the lounge room and went into the hallway. The house was occupied. There was a woman living there with her two daughters, one who was 11 years old and another who was three years old and her five-year-old son. They were all sleeping in the same bedroom. The children’s mother woke up to see you standing in the bedroom at arms-length away from her. You were wearing gloves and you had a balaclava over your face. You had a hand-made wooden knife you had painted silver. The mother thought the knife was a flick-knife. When she challenged you, you told her to go back to bed, pointing the knife at her head.
Her children had, of course, been disturbed by what was happening. You told her not to scream or you would hurt the children. You went over to the bed where the 11-year-old girl was sleeping. You removed the blankets and in front of the mother you took the child’s pyjama pants and underpants off. You held the knife to the throat of the 11-year-old girl. She was shaking with fear. You leant over her and whispered in her right ear. You touched her in the pubic area, persisting, in spite of her mother’s protests and the child’s obvious discomfort.
You waved the knife at the girl’s mother as she tried to get to the window to get help. She managed to unlock the window and run for help when you were distracted by the girl’s screams. The young girl kicked out at you to stop you touching her. You left through the window and she ran to the kitchen to try to telephone the police. She took her brother and sister outside to find her mother but had been unable to wake the neighbours. Police were called but you had left the area and were not apprehended.
The sentencing Judge imposed a sentence for the earlier offending of four years imprisonment with a non‑parole period of two years.
The appellant was released from prison on 3 April 2008 and committed the present offending whilst on parole. There is no dispute that on the day of the offending he borrowed a vehicle from the victim’s father, for whom he was working, and took the victim and her nine year old brother to see a horse at a property. He then took the victim inside a house, placed a blindfold on her and committed the offending.
Both the earlier offending and the present offending were most serious examples of these types of offences. They involved force and terror.
The sentencing Judge, taking into account the appellant’s pleas of guilty and setting one term of imprisonment pursuant to s 18A of the Act for the present offending, imposed a head sentence of imprisonment for 13 years to which he added a period of two months and eight days for the unexpired period of parole. This resulted in a head sentence of imprisonment for 13 years, two months and eight days. He set a non‑parole period of 10 years and 10 months because, having declared the appellant a serious repeat offender pursuant to s 20B(3)(b) of the Act, the non-parole period must be at least four-fifths of the head sentence. He then deducted nine months and 18 days from both the head sentence and non‑parole period on account of time spent in custody. This resulted in a head sentence of 12 years, four months and 20 days, and a non-parole period of 10 years and 12 days.
The sentencing Judge, in considering the question of whether a declaration should be made that the appellant is a serious repeat offender, said the following:
Factors to be considered include the number of prior offences, the seriousness of the offences, the age of the defendant and his prospects for rehabilitation, the time which has elapsed since the time of the repeat offences, the likelihood of further reoffending and the nature of the offending having regard to the protection of the community.
In considering the application, I have had regard to the reports of Dr O’Neill and Dr O’Brien, the Parole Board letters, the reports from the Sexual Behaviour Clinic and the notes of attendances at the clinic, the letters provided by you and the submissions of both counsel.
I note that in the Sexual Behaviour Clinic report of 3 March 2008 reference is made to the fact that you had previously been charged with three counts of indecent assault against your ex-partner’s 13-year-old sister. You had been accused of touching her breasts and genitals and placing her hand on your genitals on three separate occasions in 1982. You were charged with those offences in 1995 and were acquitted at trial. Given that you were acquitted of those charges, I cannot and do not take those matters into account and base my decision on the two incidents of offending in 2004 and 2009.
The section specifically provides for the making of such a declaration in cases of only two instances of offending against young children as opposed to requiring three serious offences of a general nature before such a declaration can be made.
Your original offending in 2004 was frightening and dangerous. Whilst some five years passed between that offending and the current offending, for over two years of that period you were in custody. The second instance of offending occurred, as I have said, when you were on parole and shortly after you had completed treatment in the Sexual Behaviour Clinic. That, together with your apparent refusal to acknowledge any sexual interest in children, the frightening nature of the second offending committed in the circumstances I have outlined, and your apparent disregard for your parole conditions, lead me to conclude that you should be declared a serious repeat offender.
Appeal
Although the appeal has been allowed and the task of this Court is to resentence the appellant, it is to be noted that the appellant complains about factual mistakes made by the sentencing Judge in his remarks. The appellant also complains that the sentence was manifestly excessive and the declaration was made in error.
The respondent properly concedes that the Judge, in his sentencing remarks, erred firstly in indicating the maximum penalty for each offence was that of life imprisonment when in fact it was imprisonment for 10 years. I have already referred to that almost understandable mistake. Secondly, the respondent contends that, in taking into account time spent in custody, the Judge erred in deducting from both the head sentence and the non‑parole period that time spent in custody. I agree with that contention. Whether this would have made any difference to the end result is academic because, in my view, having regard to an erroneous maximum penalty is enough for this Court to allow the appeal and resentence the appellant.
I first turn to whether a declaration should be made that the appellant is a serious repeat offender. I set out in full s 20B of the Act:
20B—Declaration that person is serious repeat offender
(1)A person is liable to be declared a serious repeat offender if the following conditions apply:
(a)     the person (whether as an adult or as a youth)—
(i)has committed on at least 3 separate occasions an offence to which this Division applies (whether or not the same offence on each occasion); and
(ii)has been convicted of those offences; or
(b)     the person (whether as an adult or as a youth)—
(i)has committed on at least 2 separate occasions a serious sexual offence against a person or persons under the age of 14 years (whether or not the same offence on each occasion); and
(ii)has been convicted of those offences.
(3)If a court convicts a person of a serious offence, and the person is liable, or becomes liable as a result of the conviction, to a declaration that he or she is a serious repeat offender, the court—
(a)     must consider whether to make such a declaration; and
(b)     if of the opinion that the person's history of offending warrants a particularly severe sentence in order to protect the community—should make such a declaration.
(4)If a court convicts a person of a serious offence, and the person is declared (or has previously been declared) to be a serious repeat offender—
(a)     the court is not bound to ensure that the sentence it imposes for the offence is proportional to the offence; and
(b)     any non-parole period fixed in relation to the sentence must be at least four fifths the length of the sentence.
In my view, a declaration that the appellant is a serious repeat offender should be made. The preconditions of s 20B(b) have been met. Although the appellant was not charged with an offence concerning a serious sexual offence against a person under the age of 14 years, nevertheless in the particulars of the charges it was clearly set out that the victim was eight years of age at the time of the offending.
Both the earlier offending and the present offending are most serious examples of their type. During the earlier offending, the appellant had forced himself into a house and in the present offending spirited two children away and committed particularly heinous acts on an eight year old girl. Added to that, the present offending was committed whilst he was on parole for a relatively short period after the earlier offending.
Matters that were personal to the appellant, both before the sentencing Judge and this Court, do not alter my view. The appellant was aged 44 at the time of the latter sentencing. Other than the earlier offending the appellant has a number of convictions for other minor offences. The learned sentencing Judge ordered a psychiatric report from Dr Ken O’Brien. In his conclusions in that report dated 19 April 2010, Dr O’Brien said:
In summary, therefore, Mr Pottage has pleaded guilty on two separate occasions within the last six years with respect to the commission of sexual offences. Children have been involved on both occasions. He adamantly denies that he is sexually attracted towards children. Despite incarceration, parole supervision and attendance at a dedicated sexual offender treatment programme, he re-offended whilst still on parole and in therapy. In the body of this report, I have commented on this and have suggested that Mr Pottage is at risk for the commission of further sexual offences (particularly against children) unless he further participates in and satisfactorily completes a dedicated sexual offender treatment programme. Until he concludes such a programme (in this State or in Western Australia) and its would-be-benefits are carefully evaluated, he will remain at risk to the community.
I also refer to a psychological report from Dr Marie J O’Neill dated 13 January 2010, in which she concluded that:
It is not likely that academic achievement, which may follow during his incarceration, would necessarily ensure that his proclivity for deviant sexual assault could be effective in causing him to be remediated. However, any positive change in his self image should be supported, as he is aware that personal failure and despair have played parts in driving his aberrations. Nevertheless, without long term and intensive therapy it is not possible to predict that Mr. Pottage would be able to live free of the scourge that afflicts him and which causes him to destroy innocent lives. It is well known that the opportunities for effective remediation within the prison system are lacking, and urgent submissions should be made to provide expert attention to Mr. Pottage through Departmental agencies or from other sources.
I am of the view that the seriousness of the offending, the age of the respective victims, the paucity of time between the sets of offending and the fact that the present offending was committed whilst on parole for the earlier offending clearly demand that the protection of the community, and in particular children in the community, must be paramount in the sentencing process. I am of the view that a declaration that the appellant is a serious repeat offender should be made.
Sentence
I would, pursuant to s 18A of the Act, set a notional head sentence of imprisonment for 12 years. I would reduce that to 10 years for his pleas of guilty. I would add a period of two months and eight days for his unexpired period of parole. From that notional head sentence of 10 years, two months and eight days I would deduct nine months and 18 days, the period of time spent in custody prior to sentence. I would round that off to a head sentence of nine years. I would set a non-parole period of seven years and two months to commence on 20 July 2010, the date on which the appellant was sentenced in the District Court.
PEEK J: I agree with the orders proposed by David J and with his reasons.