R v R, AW

Case [2012] SASCFC 78

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v R, A W

[2012] SASCFC 78

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nyland, The Honourable Justice Vanstone and The Honourable Justice Peek)

26 June 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - CONTRITION

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - DELAY BETWEEN OFFENCE AND SENTENCE

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - REFORMATION AND REHABILITATION

Prosecution applied for permission to appeal against sentence – respondent pleaded guilty to a charge of persistent sexual exploitation of his daughter between 1993 to 1996 – complaint originally made by victim in 2003 when she was 14 years nine months old – FAYS and SAPOL decided not to prosecute respondent on the basis that he leave home and undertake treatment at SOTAP - Respondent did so and returned home with consent of wife after 14 months - in 2010 respondent and wife separated –  victim reopened her complaint – respondent charged and pleaded guilty - sentenced in 2012 to six years imprisonment  with a one year non-parole period on the basis of an early guilty plea, contrition, and established rehabilitation associated with substantial delay in unusual circumstances.

Whether permission to appeal should be granted - whether the sentence was manifestly inadequate and in particular whether the non-parole period was erroneously low - principles relating to prosecution appeals and policy for sentencing sexual offenders considered – relevant factors for setting head sentence and non-parole period – predictive rehabilitation distinguished from established rehabilitation – consideration of changes to the parole system and their effect - discretionary and non-discretionary release on parole.

Held: (Peek J, Nyland J concurring):

Permission to appeal refused. It is not a matter of comparing the non-parole period with the head sentence or with the nature of the offences and acting on a ratio of head sentence to non-parole period asserted to be unusually large - each case must be assessed individually. The head sentence and non-parole period were within the ambit of the Judge’s discretion – the substantial delay associated with the actions of Governmental agencies and the respondent’s positive rehabilitation supported a merciful non-parole period.

Held (Vanstone J, in dissent):

Permission to appeal should be granted and appeal allowed – the non-parole period fails to acknowledge relevant legislative imperatives, tends to erode standards of punishment and is inadequate as a reflection of the punitive, deterrent and preventive purposes of punishment. On re-sentencing: a six year head sentence and a three year and six month non-parole period should be imposed. 

Criminal Law (Consolidation) Act 1935 (SA) ss 50(1), 352(1)(a)(iii); Criminal Law (Sentencing) Act

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R v R, AW [2012] SASCFC 78
Case
[2012] SASCFC 78
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions applied for permission to appeal against a sentence imposed on the respondent, R, who had pleaded guilty to persistent sexual exploitation of his daughter. The offending occurred between 1993 and 1996, when the victim was between five and eight years old. The initial complaint was made in 2003, but no prosecution followed; instead, the respondent agreed to undertake treatment at a sexual offenders program and leave the family home. Following his return home after 14 months and a subsequent separation from his wife in 2010, the victim reopened her complaint, leading to the respondent's charge and guilty plea. In 2012, the respondent was sentenced to six years imprisonment with a one-year non-parole period, taking into account his early guilty plea, contrition, and established rehabilitation, as well as a significant delay in the proceedings. The appeal concerned whether the sentence was manifestly inadequate, particularly the non-parole period.

The court was required to determine whether permission to appeal should be granted and, if so, whether the sentence imposed was manifestly inadequate, with a specific focus on whether the non-parole period was erroneously low. This involved considering the principles applicable to prosecution appeals against sentence and the sentencing policies for sexual offenders. The court also had to assess the relevant factors for setting both the head sentence and the non-parole period, distinguishing between predictive rehabilitation and established rehabilitation, and considering the impact of changes to the parole system, including discretionary and non-discretionary release mechanisms.

The court reasoned that while the six-year head sentence was at the lower end of the acceptable range, the one-year non-parole period was too low given the gravity of the offending and its profound impact on the victim. The court acknowledged the respondent's early guilty plea, contrition, and the delay in prosecution, which had facilitated his rehabilitation. However, it found that these factors did not justify such a short non-parole period. The court considered that, despite the mitigating circumstances, the non-parole period should reflect community abhorrence for such offences and the need for adequate punishment.

Consequently, the court granted permission to appeal, allowed the appeal, and set aside the original sentence. The court reimposed the head sentence of six years imprisonment but increased the non-parole period to three years and six months, deeming the original sentence, even with the revised non-parole period, to be merciful.

Orders

Orders of the court

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Background

Background to the litigation

The Director of Public Prosecutions accepts that the six year head sentence was within the available range – although right at the lower end of it – but argues that the non-parole period was erroneously low and such as to erode the standards of punishment appropriate for such offending and to shock the public conscience.Background The respondent pleaded guilty to the charge on the basis that a course of conduct continued over about a three year period when the victim was aged between five and eight years and that, although the number of occasions of assault could not be established, digital penetration and cunnilingus each occurred in the order of half a dozen times and that the victim also performed fellatio on the respondent. Further less invasive acts were also particularised in the information. As mentioned, the respondent’s conduct first came to light in mid 2003 when the victim complained to a counsellor, who reported the matter to the police. The police investigation did not proceed to charges, since the victim, then 14 or 15 years of age, signed a statement to the effect that she wished no further action to be taken on the complaint. Apparently it was resolved that the respondent would attend a course called the Sexual Offenders Treatment and Assessment Program (SOTAP). A report from Dr Louis furnished to the Court in November 2011 related that the course had been satisfactorily completed. Dr Louis said that in 2004 the respondent had reported that he was abiding by the conditions of an agreement he had entered into as part of the program and was ensuring that he was not alone with any child either while at home or elsewhere. He was also receiving guidance from his pastor, and the respondent and his wife were receiving counselling in relation to their marriage from that pastor. Dr Louis related that the last contact with the respondent was by telephone in November 2005 when the respondent said he was doing well. In May 2010 the respondent and his wife separated and it was only about three months later that the victim went to the police and made a complaint. By this time she was 22 years of age. Her statement recorded a progression of sexual abuse from the time she was about five, occurring on numerous occasions and progressing to penetrative offences. The offences would occur in the respondent’s or victim’s bedroom and in the bathroom, where they would often shower or bathe together. The victim’s statement also alleged that the respondent had interfered with her younger sister – an allegation the truth of which was apparently acknowledged by the respondent to Dr Louis – but the judge was told that no charge had been laid and it should be disregarded. Apparently the sister had an intellectual disability. Apart from the report of Dr Louis, the judge also had before him a report of Mr Fugler, a forensic psychologist, who interviewed the respondent in October 2011. He reported that the respondent appeared to have successfully completed the SOTAP program and to have effectively applied ‘relapse prevention measures’. Mr Fugler observed that if the respondent’s report to him was accurate he should not require further intervention. He reported that the respondent was contrite in relation to the sexual abuse of his daughter and understood the impact it had had upon her.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

NYLAND J VANSTONE J PEEK J
Given the profoundly deleterious effects that the conduct of the respondent had upon his victim and the abhorrence in the community of conduct of this type – which abhorrence is reflected in the sections of the Sentencing Act to which I have already referred – the non-parole period in this case could not in my mind be any less than one of three years and six months. Even there, I consider that the total sentence could be described as merciful.Conclusion For these reasons I would make the following orders:1. grant permission to appeal to the Director of Public Prosecutions;2. allow the appeal;3. set aside the sentence imposed by the judge;4.in its place impose again the head sentence of six years imprisonment and impose a non-parole period of three years and six months, that sentence being taken to have commenced on 9 March 2012. Application by the Director of Public Prosecutions for permission to appeal against sentence.Introduction The respondent was born in December 1961. He and his wife were married in the 1980’s and their daughter, M, was born on 8 May 1988. The respondent pleaded guilty to a charge of persistent sexual exploitation of a child, his daughter M, contrary to s 50(1) Criminal Law Consolidation Act 1935. The offence occurred between 1993 and 1996 when M was aged between five and eight years. The District Court sentencing Judge (the Judge) sentenced the respondent on the factual basis that he had performed approximately six acts of digital penetration, six acts of cunnilingus and had forced M to perform a lesser number of acts of fellatio over the above period of time. This conduct came to occur in circumstances where M was in the habit of crawling into bed with the respondent and his wife who was a sound sleeper; the respondent initially began to fondle M on such occasions but this escalated to the serious criminal conduct charged. The sentence imposed was imprisonment for six years with a non-parole period of one year. The DPP seeks permission to appeal pursuant to s 352(1)(a)(iii) Criminal Law Consolidation Act 1935 on the basis that the sentence is manifestly inadequate. The 2003-2010 hiatus The matter of the delay in initiating a prosecution from 2003 to 2010 and the associated rehabilitation of the respondent was the most important factor leading to the imposition of the low non-parole period and will need to be considered in some detail.The initial report by M in 2003 and the subsequent events The charged conduct ceased in 1996. About seven years later in May 2003, when she was aged 14 years nine months, M complained of that conduct to her school chaplain who referred the matter to the Department of Families and Youth Services (FAYS) and SA Police (SAPOL) (together referred to as the Governmental Agencies). Discussions occurred in May 2003 between the Governmental Agencies, M, A, and the respondent. Such discussion also included discussion with officials of the Sexual Offender Treatment and Assessment Programme (SOTAP). It was resolved between all parties that instead of criminal charges being laid, the respondent would attend at SOTAP to obtain treatment and while doing so would move out of the matrimonial home.

Ratio Decidendi

Legal Principle Established

Established by: NYLAND J, VANSTONE J, PEEK J

The above analysis does not depend upon the precise formulation of the proposed grounds of appeal. Although it might be better to specifically refer to the non-parole period if that is to be the real focus of attention, the non-parole period is part of the sentence itself and it is therefore not immune from attack under a ground of appeal of the present type. Of course, an additional ground of appeal asserting that the Judge in fixing the non-parole period made a specific error of one of the types referred to in Dinsdale v The Queen[18] would raise different matters for consideration but no such complaint is made, or could be made, in the present case. [18] (2000) 202 CLR 321. The specific errors are: an error of law; a fact finding error; taking into account irrelevant considerations; failure to take relevant considerations into account.Consideration of the head sentence It is clear that the starting point of nine years adopted by the Judge came well within any range referred to by s 29D Criminal Law (Sentencing) Act 1988 (the Act) or The Queen v D[19]. Of necessity, any such starting point must be somewhat imprecise. As Doyle CJ stated in The Queen v D:[20]It is impossible to be precise in these matters, and I do not wish to be taken as suggesting a precise figure. In an appropriate case the starting point might be higher or lower. [19] (1997) 69 SASR 413.[20] (1997) 69 SASR 413, 424. I also note the remarks of Gray J (with whom Kelly J concurred) in R v Marikar [2010] SASCFC 36, [42]; “The construction of this section is not without difficulty. It is clear that Parliament intended to give legislative efficacy to the remarks of the Court of Criminal Appeal in The Queen v D. However, it is to be noted that Doyle CJ emphasised that he did not consider it appropriate to, nor was he attempting to, “establish exhaustive guidelines for the imposition of sentences under s 74” of the Criminal Law Consolidation Act. Further, Doyle CJ specifically emphasised in The Queen v D that any starting point would, in any event, be subject to reduction on account of a plea of guilty, co-operation with the police, genuine contrition and so on. In R v Marien[21] the Court (Gray, Sulan and Blue JJ) stated in a passage that I would respectfully adopt:[26]Section 29D does not fetter the Court’s discretion to determine the sentence appropriate to each individual case, having regard to all the circumstances of the offending and matters personal to a defendant. The effect of s 29D does no more than require the Court to have regard to the decision in R v D.[21] [2011] SASCFC 116. In the present case, the Judge reduced a starting point of nine years to six years having regard to all of the circumstances. These included the relatively common matters of the respondent having no relevant prior offending; that he was contrite; that he had pleaded guilty at effectively the first opportunity; and that he had spared his daughter the trauma of giving evidence. Such matters largely corresponded to examples given by Doyle CJ in The Queen v D of “a plea of guilty, co-operation with the police, genuine contrition and so on”.