R v Rapley

[1999] NSWCCA 302

CITATION:	REGINA v RAPLEY [1999] NSWCCA 302
FILE NUMBER(S):	CCA 60147/99
HEARING DATE(S):	14 September 1999
JUDGMENT DATE:	14 September 1999
PARTIES :	REGINA v GEORGE CHARLES RAPLEY
JUDGMENT OF:	Handley JA at 1; Grove J at 24, 28; Hidden J at 25

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0192
LOWER COURT JUDICIAL OFFICER:	Solomon DCJ

COUNSEL:	M M Cunneen (Appellant)
SOLICITORS:	S E O'Connor (Appellant) Greg Walsh (Respondent)
CATCHWORDS:	CRIMINAL LAW - sexual abuse of granddaughter - Crimes Act 1900 - s 66A - sexual intercourse with a person under the age of 10 - s 61M(2) - aggravated indecent assault against a person under the age of 10; SENTENCING - Criminal Appeal Act 1912 - Crown appeal under s 5D - whether sentence imposed by trial Judge manifestly inadequate - whether factors such as age of prisoner, contrition of prisoner, or wishes of victim's family warrant non-custodial sentence
ACTS CITED:	Criminal Appeal Act 1912 (NSW) Crimes Act 1900 (NSW)
CASES CITED:	Allpass (1993) 72 ACrimR 561 King (CCA unrep 2/4/97) DCM v R (CCA unrep 26/10/93)
DECISION:	Appeal allowed - orders made

IN THE COURT OF
CRIMINAL APPEAL

CCA 60147/99
98/11/0192

HANDLEY JA
GROVE J
HIDDEN J

Tuesday 14 September 1999

REGINA v GEORGE CHARLES RAPLEY

CRIMINAL LAW - sexual abuse of granddaughter - Crimes Act 1900 - s 66A - sexual intercourse with a person under the age of 10 - s 61M(2) - aggravated indecent assault against a person under the age of 10

SENTENCING - Criminal Appeal Act 1912 - Crown appeal under s 5D - whether sentence imposed by trial Judge manifestly inadequate - whether factors such as age of prisoner, contrition of prisoner, or wishes of victim’s family warrant non-custodial sentence

The respondent pleaded guilty to five charges involving the sexual abuse of his eight year old granddaughter. Sentence was deferred, and the trial Judge ordered the respondent’s release on recognizance. The trial Judge’s reasons for this decision included the age of the respondent, the absence of a criminal record, the spontaneous nature of the offences, the contrition of the respondent, and the wishes of the victim’s immediate family that the respondent not go to prison. The Crown appealed, on the basis that the sentence was manifestly inadequate and failed to take into account the objective criminality of these offences.

HELD , allowing the appeal: (1) The exercise of the trial Judge’s sentencing discretion had miscarried. The nature of the respondent’s offences were such that they should attract a full-time custodial sentence. Allpass (1993) 72 ACrimR 561 and King (CCA unrep 2 April 1997), followed. (2) The matters which the trial Judge took into account, such as the age of the respondent, the contrition of the respondent, and the wishes of the victim’s family, inter alia, were individually and collectively of little weight in supporting a non-custodial sentence.

ORDERS
(1) Appeal allowed;

(2) The orders made in the District Court are quashed, and in lieu thereof the respondent is sentenced as follows. On each of counts 1 & 4, charging sexual intercourse with a person under the age of 10 years, the respondent is sentenced to two years penal servitude to be served concurrently; those sentences to consist of minimum terms commencing 14 September 1999 and to expire on 13 March 2001, together with additional terms of six months commencing on 14 March 2001. On each of counts 2, 3 and 5 charging aggravated indecent assault on a person under the age of 10 years, the respondent is sentenced to imprisonment for fixed terms of 12 months to be served concurrently with each other, and in relevant part concurrently with the minimum terms imposed in respect of counts 1 & 4;
(3) The respondent to be released on parole on 13 March 2001 and whilst on parole he be subject to the supervision of the Probation and Parole Service;


(4) The respondent to be taken into custody forthwith.

IN THE COURT OF
CRIMINAL APPEAL

CCA 60147/99
98/11/0192

HANDLEY JA
GROVE J
HIDDEN J

Tuesday 14 September 1999

REGINA v GEORGE CHARLES RAPLEY

JUDGMENT

1 HANDLEY JA: This is a Crown appeal under s 5D of the Criminal Appeal Act against a sentence imposed by Solomon DCJ on the respondent. The respondent had pleaded guilty in December 1998 to five charges involving the sexual abuse of his granddaughter who was under the age of 10. There were two counts of sexual intercourse with a person under the age of 10, contrary to s 66A of the Crimes Act, which carried a maximum penalty of 20 years penal servitude. There were also three counts of aggravated indecent assault against a person under 10, contrary to s 61M(2) of the Crimes Act, which carried a maximum penalty of 10 years imprisonment.
2    The first three counts charged offences on 22 August 1998 and the other two charged offences between February and August 1998.
3    The learned sentencing Judge, for reasons which he gave on 26 February this year, deferred passing sentence and ordered the respondent's release upon his entering into a recognizance to be of good behaviour for a period of 5 years, subject to the conditions he identified.
4    The respondent was in his early 60s at the time of the offences and his granddaughter was aged eight. On 22 August, the respondent was at the home of his son, the father of the victim. The respondent and the victim were in a bedroom and sexual conduct was in progress when the victim's father walked in and saw what was happening. The respondent admitted his guilt and consequently confessed to additional offences against the victim which had occurred during the previous six months.
5    The Crown submits that the sentence imposed by the learned sentencing Judge was manifestly inadequate and failed to properly reflect the objective criminality of these offences.
6    The Judge recognised this aspect of the case in his remarks on sentence when he said:

"The offences are abhorrent and repugnant. A child was sexually abused by her grandfather. There was a gross breach of trust. This community will not tolerate behaviour of this kind. The seriousness of the offences is reflected in the sentences as contained in the Crimes Act ".

7    However, the Judge went on to find that this was a most unusual case. He enumerated the various matters which led him to this conclusion. He said that the accused had made a full disclosure to his family after he was caught in the act and this had had drastic repercussions on the wider family; the accused's wife had left him shortly afterwards, and he had become estranged from the rest of his family.
8    He found that the prisoner was contrite. He thought that this was manifest in the pleas of guilty, in his undertaking treatment under the care of Professor McConachie, and rehabilitation with the Child Abuse Prevention Service.
9    The Judge noted that there appeared to have been no great harm suffered by the victim; but he added that one does not know what the ongoing psychological results of these offences may be for the young girl. He said that a factor which weighed heavily with him was the attitude of the victim's father who said that he did not wish the prisoner to be sent to prison for various reasons, which he mentioned.
10    In conclusion, the Judge said that he would not impose a custodial sentence having regard to the age of the prisoner; the absence of a criminal record; the spontaneous nature of the offences; the absence of any planning, the probability that the offences would be detected; and the minimal chance of re-offending.
11    With respect to the Judge, it appears to me that his Honour has seriously misconceived the nature of the facts in this case. The full disclosure made to the family, and in due course to the police, and the plea of guilty, in my judgment, are not factors of any significant weight, in view of the fact that the respondent had been caught in the act.
12    I fail to see how, in these circumstances, a plea of guilty, even at an early stage, can be any evidence of contrition; and, in any event, the contents of the prisoner's record of interview failed to demonstrate any significant degree of contrition. Indeed his statements include elements of self-justification and an attempt to pass some of the responsibility on to the victim.
13    While it is a significant fact that the victim’s father gave evidence that he did not wish the prisoner to go to gaol, his most compelling reason, in the view of the sentencing judge, was:

"He does not wish his daughter to have the guilt of having her grandfather sent to gaol".

14    I fail to see, with all respect, how that can be a factor of any weight in the sentencing exercise in this case. The guilt here is that of the respondent and it would be totally inappropriate for the victim to have any guilt whatever. I would hope and expect that the family would recognise that the victim was not responsible for what happened to her grandfather and should have no guilt about it whatever. The Judge’s reference to that reason, with respect, seems to turn the sentencing process on its head.
15    Other matters referred to by the Judge, such as the age of the prisoner, the absence of a criminal record, and the fact that the offences occurred spontaneously and without planning, are common features of many of the cases where young children are subject to sexual abuse by adult members of their family. If those factors, individually or collectively, are thought to warrant a sentencing decision which does not involve a period of full time custody, the protection which the Crimes Act intends to confer on members of families and the punishment which is intended, as a general rule, to be imposed on the perpetrators, will stand for nothing.
16    Many of the cases to which we have been referred include fact situations where the age of the prisoner is of the order here, and it is typical of these cases that the prisoner has no criminal record. However, it seems to me that the fact that the offences occurred spontaneously, if it be the fact, is of little weight in sentencing for these offences, but I cannot agree that there was no planning by the respondent. The offences occurred over a period of six months and the respondent did his best to ensure that he would not be detected. It is also a common feature in these cases that there will be little or no risk of re-offending. 17    It seems to me, with respect, that by and large all the matters which the learned sentencing Judge took into account are individually and collectively of little weight in supporting a decision that the prisoner should not be given a full time custodial sentence.
18    This court has said in Allpass (1993) 72 ACrimR 561 and King (unrep 2 April 1997) that offences of this nature will normally attract custodial sentences. This simply reflects the objective seriousness of the offences according to ordinary standards of human conduct which is reflected in the penalties provided for in the Crimes Act.
19    The age of the perpetrator was said to be no licence to commit offences of this kind in R v DCM (unrep 26 October 1993). Likewise it was said in the same case that previous good character was of little weight. In Allpass (ibid) the Court said that the absence of a risk of re-offending was not a matter of great significance because, as it said:

"This does not answer the obvious need for general deterrence in relation to crimes of this nature".

20    The most recent decision in King, already referred to, strongly emphasised the need for adequate sentencing in this area.
21    In my judgment the objective seriousness of the offences, and the errors of fact and principle that I have referred to, establish that the Judge’s exercise of his sentencing discretion miscarried. This Court must therefore re-exercise the sentencing discretion, bearing in mind the restraints which authority require this Court to exercise when re-sentencing on a Crown appeal.
22 In my judgment the appropriate sentence is of 2 years on the offences under s 66A, minimum terms of 18 months to be served concurrently with additional terms of 6 months and fixed terms of 12 months on the charges under s 61M(2) to be served concurrently with each other and concurrently with the sentences under s 66A.
23    I would therefore propose that the appeal be allowed, the sentence imposed by the learned sentencing Judge quashed, and that the sentence stated be substituted.
24    GROVE J: I agree with Handley JA.
25    HIDDEN J: I agree that the appeal must be allowed. I agree that on the major matters a sentence of 2 years penal servitude is appropriate. For my part, I would have divided that into a minimum term of 12 months and an additional term of 12 months in recognition of the respondent's continuing need for treatment and counselling.
26    I would also add this. In my view, no criticism whatsoever attaches to the stance adopted by the victim's father. While I agree with the learned presiding Judge that that stance could not properly influence the sentencing outcome, it is an attitude which was humane, responsible and, in all the circumstances, entirely understandable.
27    HANDLEY JA: I will ask Mr Justice Grove to pronounce the formal orders of the court.
28    GROVE J: The orders of the court are as follows. The appeal is allowed, the orders made in the District Court are quashed, and in lieu thereof the respondent is sentenced as follows. 29    On each of counts 1 and 4, charging sexual intercourse with a person under the age of 10 years, the respondent is sentenced to 2 years penal servitude to be served concurrently. Those sentences to consist of minimum terms of 18 months commencing today, 14 September 1999, and to expire on 13 March 2001, together with additional terms of six months commencing on 14 March 2001. 30    On each of counts 2, 3 and 5 charging aggravated indecent assault on a person under the age of 10 years, the respondent is sentenced to imprisonment for fixed terms of 12 months to be served currently with each other, and in relevant part concurrently with the minimum terms imposed in respect of counts 1 and 4 to commence today, 14 September 1999, and to expire on 13 September 2000. It is specified that fixed terms are imposed in respect of these counts because of the concurrency just mentioned. It is ordered that the respondent be released on parole on 13 March 2001 and, whilst on parole, he be subject to the supervision of the Probation and Parole Service. The respondent is to be taken into custody forthwith.