R v RGC - [2020] SASCFC 102

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RGC
[2020] SASCFC 102
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Justice Doyle)
30 October 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS
Application for permission to appeal against sentence.
The respondent pleaded guilty to one count of maintaining an unlawful sexual relationship with a child contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this offence is life imprisonment.
The respondent was sentenced to a notional head sentence of 15 years imprisonment. After a discount of 20 per cent on account of the respondent’s guilty plea, the sentencing judge imposed a reduced head sentence of 12 years imprisonment and fixed a non-parole period of six years (being 50 per cent of the head sentence). Both the head sentence and the non-parole period were reduced by six months on account of the time spent by the respondent in custody and on home detention. The sentence ultimately imposed was a head sentence of 11 years six months imprisonment, with a non-parole period of five years six months.
The appellant’s sole ground of appeal is that the sentence is manifestly inadequate. The appellant accepts that the head sentence was within the permissible range, but contends that a non-parole period of 50 per cent of the head sentence was so manifestly inadequate as to warrant and require the intervention of the Court.
Held per Doyle J (Stanley and Parker JJ agreeing), granting permission to appeal and allowing the appeal:
1.      The non-parole period of 50 per cent of the head sentence was manifestly inadequate, given the absence of anything in the respondent’s offending or personal circumstances to suggest he had good prospects for rehabilitation or was otherwise an appropriate candidate for a lenient non-parole period.
2.      It is appropriate that the Court intervene in this case, so as to maintain proper sentencing standards and so as not to threaten public confidence in the administration of justice.
3.      The sentence is set aside. The respondent is re-sentenced using the same head sentence as the sentencing judge, namely 12 years imprisonment (after a 20 per cent reduction on account of his plea of guilty), but with a non-parole period of eight years imprisonment (being two-thirds of the head sentence). After an allowance of six months for the time spent in custody and on home detention, the adjusted head sentence is 11 years six months and the non-parole period seven years six months.
Criminal Law Consolidation Act 1935 (SA) s 50, referred to.
R v D (1997) 69 SASR 413; R v McIntyre [2020] SASCFC 101; R v Palmer [2016] SASCFC 34, considered.

R v RGC
[2020] SASCFC 102
Court of Criminal Appeal: Stanley, Parker and Doyle JJ

STANLEY J: I would grant permission to appeal and allow the appeal. I agree with the orders proposed by Doyle J and with his reasons.
PARKER J: I would grant permission to appeal and allow the appeal. I agree with the orders proposed by Doyle J and his reasons.
DOYLE J: This is an application by the Director of Public Prosecutions for permission to appeal against the sentence imposed upon the respondent.
The respondent pleaded guilty to one count of maintaining an unlawful sexual relationship with a child contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this offence is life imprisonment.
The sentencing judge commenced with a notional head sentence of 15 years imprisonment. This was reduced by 20 per cent to 12 years imprisonment on account of the respondent’s plea of guilty, this being the maximum available discount given the timing of the plea. The sentencing judge then fixed a non-parole period of six years, being 50 per cent of the head sentence. Both the head sentence and the non-parole period were reduced by six months on account of the 15 days the respondent had spent in custody and the 17 months he had spent on home detention.
The sentence ultimately imposed was thus a head sentence of 11 years six months imprisonment, with a non-parole period of five years six months.
The sole ground of appeal in respect of which the Director seeks permission to appeal is that the sentence is manifestly inadequate. The Director accepts that the head sentence was within the permissible range. The basis for the contention of manifest inadequacy relates to the non-parole period. The Director contends that in circumstances where neither the sentencing remarks nor the material before the sentencing judge provided any basis for confidence or optimism in respect of the respondent’s prospects of rehabilitation, and indeed suggested a need to be cautious, a non-parole period of 50 per cent of the head sentence was so manifestly inadequate as to warrant and require the intervention of this Court.
Circumstances of the offending
The respondent is the step-father of the victim, having commenced a relationship with her mother when the victim was two years old. The victim has no knowledge of her biological father.
The victim and the respondent lived together in the family home with the victim’s mother and younger sister. The victim’s mother suffered from a number of health issues, resulting in the respondent being heavily involved in the daily care of the victim.
The victim suffered from early global developmental delay for which she received ongoing treatment and specialist care during the course of the offending against her.
The respondent commenced sexual offending against the victim when she was nine years of age. The offending involved a nine year course of conduct which continued through until the victim reached 18 years of age. Indeed, the respondent continued to have sexual relations with the victim after her eighteenth birthday; the last of the sexual acts between them took place only three weeks before the victim reported the matter to the police when she was 20 years of age.
The sexual offending against the victim took place multiple times a week and included the following acts: touching her on the vagina; digital penetration of her vagina; penile penetration of her vagina; causing her to perform fellatio upon him; causing her to touch his penis; showing her pornographic material on more than once occasion; performing cunnilingus upon her; attempting to insert his finger into her anus; attempting to insert his penis into her anus; and touching her breasts.
The offending against the victim involved hundreds of penetrative and other sexual acts over the nine year period that I have mentioned.
In addition to the acts outlined above, the victim’s affidavits detailing the sexual abuse that the respondent perpetrated upon her disclosed that he penetrated her vaginally with carrots on multiple occasions, and a cucumber on one occasion. The victim also described an incident during which a broom handle was inserted into her vagina while lying on the respondent’s bed. The respondent admitting using carrots to penetrate the victim’s vagina, although he denied using a cucumber. As to the allegation involving the broom handle, he admitted the conduct described by the victim in him inserting an object into her vagina, albeit that he denied the use of a broom handle. It is accepted that the sentencing judge was entitled to, and did, take into account these uncharged acts to the extent they were admitted by the respondent.
While there were some disputes about the detail of the factual basis for both the charged acts and the uncharged acts, the sentencing judge was entitled to take the view that he did; namely, that these disputes were of no material significance in the scheme of the respondent’s overall offending.
The sentencing judge had before him a detailed description by the victim of the nature and extent of the offending against her. I see no reason to set out that detail in these reasons. It is sufficient for present purposes to observe that the victim was subjected to hundreds of acts of inappropriate sexual abuse throughout the nine year period that I have mentioned. The respondent’s offending involved an extremely depraved and degrading course of sexual abuse. It was nothing short of horrific.
The injury and harm caused to the victim as a result of the offending was apparent from her affidavits and victim impact statement. In particular, she described feeling degraded as a result of the offending and the respondent’s treatment of her, and indeed of being suicidal. On the day she reported the matter to police she had determined to commit suicide. It is readily apparent that she has suffered severe psychological and emotional trauma as a result of the offending.
Personal circumstances of the respondent
The respondent was 44 years of age at the time of sentencing. He was born in Port Augusta, and was the youngest of three children. His father was an alcoholic, and died when the respondent was 19 years of age. The respondent left school after completing year 9. He was thereafter largely continuously employed in unskilled or semi-skilled work, with occasional periods of unemployment. At times the respondent has experienced difficulties with excessive drinking.
The respondent has no relevant prior convictions.
While the respondent’s then counsel outlined these personal circumstances for the sentencing judge, the respondent did not seek to rely upon any reports or other material. He did not proffer any explanation for his offending. Other than his plea of guilty, and a statement through his counsel that he understands the seriousness of the offending, the respondent proffered nothing to suggest that he took responsibility for that offending, that he was remorseful or contrite, or that he had any insight into the reasons for his offending.
Sentencing remarks
The sentencing judge described the respondent’s offending against his step-daughter as “an extremely lengthy, extremely frequent and extremely degrading course of conduct.” His Honour pointed out that the respondent did not voluntarily cease his sexual abuse of his step-daughter; it only ceased when she went to the police.
After mentioning the victim’s difficulties as a child (including trying to cope with her mother’s illness), the sentencing judge emphasised that the respondent’s offending involved him taking advantage of what he knew to be the victim’s peculiar vulnerability. His Honour also described the profound and long-term impact that the respondent’s offending had already had, and was likely to continue to have, on the victim’s life.
The sentencing judge outlined the respondent’s personal circumstances, in essentially the terms I have set out above. His Honour noted that the respondent had no relevant prior convictions.
In arriving at an appropriate head sentence, the sentencing judge noted the existence of authority (being an apparent reference to R v D[1]) for the proposition that for long-term sexual offending against children, the starting point is a prison sentence of 12 years. However, his Honour went on to say that, in his view, “the extensive period of [the respondent’s] offending, its frequency, the breach of trust and the humiliating nature of the offending calls for a higher starting point.”
[1] R v D (1997) 69 SASR 413.
The sentencing judge started with a notional head sentence of 15 years imprisonment. He reduced that by 20 per cent on account of the respondent’s plea of guilty, being the maximum available discount given the timing of that plea. His Honour then, without further explanation, announced a notional head sentence of 12 years imprisonment and a non-parole period of six years (being 50 per cent of the head sentence).
His Honour made an allowance of six months for the 15 days the respondent had spent in custody and the 17 months he had spent on home detention. This reduced the head sentence to 11 years six months imprisonment, and the non-parole period to five years six months.
Consideration
There is no challenge to the head sentence imposed by the sentencing judge. I agree that it was an appropriate penalty given the horrific nature of the respondent’s offending, the length of time over which it occurred, and the profound impact it has had on the victim’s life and will likely continue to have.
As I have recently had occasion to reiterate in R v McIntyre,[2] all sexual offending against children calls for a strong sentencing response in order to ensure it adequately achieves the sentencing objectives of deterrence, punishment and protection of the community. However, that is all the more so where, as here, that offending involves the abuse and exploitation of a relationship of trust and a child with peculiar vulnerabilities.
[2] R v McIntyre [2020] SASCFC 101.
The Director’s complaint of manifest inadequacy in the sentence ultimately imposed is confined to an attack upon the adequacy of the non-parole period as a proportion of the head sentence. As it happens, this appeal raises considerations that have been the subject of detailed consideration in R v McIntyre,[3] which was heard by a similarly constituted Court the day before this appeal. I see no need to repeat or summarise the matters of principle that have I addressed at some length in my reasons in that case. I think it is sufficient for me to refer to what I said in those reasons in relation to the principles governing the fixing of an appropriate non-parole period,[4] an assessment of manifest inadequacy,[5] and the circumstances in which it is appropriate for this Court to grant permission in a Crown appeal against sentence.[6]
[3]    R v McIntyre [2020] SASCFC 101.
[4]    R v McIntyre [2020] SASCFC 101 at [66]-[75].
[5]    R v McIntyre [2020] SASCFC 101 at [61]-[63].
[6]    R v McIntyre [2020] SASCFC 101 at [80].
Even accepting, as I do, the latitude which it is appropriate to afford a sentencing judge when fixing a non-parole period, the difficulty in this case is essentially the same as that identified with the non-parole period in R v McIntyre. It is that upon a fair reading of the sentencing judge’s remarks, and the material he had before him, it cannot be said that the non-parole period of 50 per cent of the head sentence was the product of a balancing exercise of the type contemplated by Kourakis CJ in R v Palmer.[7]
[7] R v Palmer [2016] SASCFC 34 at [4].
The sentencing judge said nothing to suggest that he had any reason to be optimistic as to the respondent’s prospects of rehabilitation. More fundamentally, there was in any event nothing in the material before his Honour that could reasonably have justified any such optimism.
While the respondent pleaded guilty, he was given the maximum available discount for this. While it may be contended that the sentencing judge was entitled to infer some level of remorse from this plea, I do not think it is appropriate in the present case to infer any significant degree of remorse in the absence of some corroboration of the same. There is every chance, in a case such as the present, that the plea was largely motivated by the desire to receive a reduced penalty. The best the respondent could point to was the statement through his counsel during sentencing submissions that her client understood the seriousness of his offending. In my view, there was no proper basis to infer any significant level of insight, remorse or contrition on the part of the respondent.
It is true that the respondent had no relevant prior convictions. While this might in some cases be good cause for optimism as to a defendant’s prospects for rehabilitation, I do not think it carries any significant weight in a case, such as the present, where the respondent’s offending involved a course of conduct that spanned approximately a decade, and involved a very large number of frequent and serious acts of criminal sexual abuse.
To the extent that anything can be inferred as to the respondent’s prospects of rehabilitation, the lengthy and sustained nature of his criminal conduct suggests that the path to rehabilitation will not be an easy one. To the contrary, it suggests a reason to be cautious about his prospects for rehabilitation.
In all of the circumstances, I am not satisfied that there was a proper basis to fix a non-parole period towards the bottom of the usual range, let alone right at the bottom of that range. In my view, the non-parole period (fixed initially at 50 per cent of the head sentence) was manifestly inadequate.
Further, in my view, for essentially the same reasons as I gave in R v McIntyre,[8] I consider that it is appropriate in this case for the Court to intervene so as not to shake the public’s confidence in the proper administration of justice and so as to ensure the maintenance of adequate sentencing standards.
[8] R v McIntyre [2020] SASCFC 101.
In resentencing the respondent, I would fix a non-parole period of eight years, being two-thirds of the reduced head sentence of 12 years.
Like the sentencing judge I would reduce the head sentence and non-parole period by six months on account of the respondent’s time in custody and home detention. I would backdate both to the date upon which his bail was revoked, namely 27 August 2020.
Orders
I would grant permission to appeal and allow the appeal. I would set aside the sentence imposed by the sentencing judge. I would impose the same head sentence as his Honour, namely 11 years six months imprisonment. I would fix a non-parole period of seven years six months. I would backdate the head sentence and non-parole period to commence on 27 August 2020.