R v Russell (a pseudonym) - [2022] SASCA 143

Supreme Court of South Australia
(Court of Appeal: Criminal)
R v RUSSELL (A PSEUDONYM)
[2022] SASCA 143
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable President Livesey and the Honourable Justice Doyle)
23 December 2022
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SENTENCING GUIDELINES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - SENTENCING METHODS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Crown appeal against sentence.

The respondent pleaded guilty to three counts of maintaining an unlawful sexual relationship and one count of aggravated indecent assault contrary to sections 50(1) and 56(1) of the Criminal Law Consolidation Act 1935 (SA), respectively. The respondent was sentenced by a judge of the District Court to 14 years’ imprisonment with a non-parole period of 11 years, two months and 12 days.
The victims of the respondent’s offending were his three nieces, MB, AB and HB, and his granddaughter, AH. The charged offending occurred during the period from 2008 until 2021. The victims of the respondent’s offending were each under the age of 14 years at the time the offending against them commenced.
In sentencing the respondent, the judge allowed for a degree of concurrency but did not specify the degree of concurrency as between each of the counts which resulted in a head sentence of 14 years’ imprisonment.
The Director of Public Prosecutions (SA) appeals on three grounds:
1.The sentence imposed was manifestly inadequate.
2.The judge erred in the degree of flexibility of application of the standard in R v D (1997) 69 SASR 413.
3.The judge erred in reducing the notional head sentence on account of concurrency on the basis of interconnection between the respondent’s offending.
Held per Livesey P and Doyle JA (refusing permission to appeal):
1.The sentencing judge did not err in her invocation or application of the principles of concurrency in arriving at the ultimate sentence to be imposed.
2.Whilst the starting point identified in respect of the sentence for one count was too low, the disparity between the appropriate ultimate sentence, and the one in fact imposed was not such as to justify a grant of permission to appeal.
Held per Kourakis CJ (granting permission to appeal and allowing the appeal):
1.The sentence was manifestly inadequate.
2.The sentence imposed by the District Court should be set aside.
3.The judge’s remarks fail to identify any reason for fixing notional sentences for the offending against AB and AH which fall below the guidelines given by the Court in R v D (1997) 69 SASR 413 and no basis to do so is apparent on the face of the relevant circumstances.
4.There is no explanation for the high degree of concurrency of all sentences nor is any basis for it apparent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Russell (a pseudonym)

Details

AGLC: R v Russell (a pseudonym) [2022] SASCA 143
Case: [2022] SASCA 143
Decision Date: 23 December 2022

CaseChat Overview and Summary

This matter concerned a Crown appeal against sentence in the Supreme Court of South Australia. The appeal was brought by the Director of Public Prosecutions against the sentence imposed on the respondent, R v Russell (a pseudonym), who had been convicted of multiple sexual offences against four victims, including unlawful sexual intercourse with a child under the age of 14 and abuse of a position of trust.

The central legal issue before the Court was whether the sentencing judge's approach to determining the sentence, particularly the application of the sentencing standard established in *R v D*, and the resulting sentence imposed, were unduly lenient and therefore warranted intervention on appeal. The Court was required to consider the adequacy of the individual starting points for each offence and the overall sentence, taking into account the nature of the offending, the devastating impact on the victims, and the respondent's personal circumstances.

The Court acknowledged that while the sentencing judge correctly identified the relevance of the *R v D* standard for some of the offences, a degree of flexibility in its application was appropriate. This flexibility requires consideration of factors such as the nature and frequency of the offending, its duration, the victim's age, the impact on the victim, and the offender's personal circumstances. Although the Court agreed that the sentence ultimately imposed was low, it concluded that the disparity between the imposed sentence and what ought to have been imposed was not so significant as to require the Court's intervention on a Crown appeal. The Court referred to its contemporaneously published reasons in *Warner v The King* for further elaboration on these principles.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The following summary, given in the Director’s submissions, of the victim impact statements provided to the sentencing Court warrants repetition because the devastating effect of Mr Russell’s offending must be fully appreciated when weighing the competing considerations which bear on the Director’s application for permission:In her victim impact statement, [MB] explained the heavy emotional hurt and psychological impact that the respondent’s offending has had on her and the associated embarrassment and distress caused as a result of the overwhelming nature of the public revelation of the offending. [MB] explained that the impact upon her included severe depression and anxiety, a feeling that she cannot trust others, mainly men, and that she harboured feelings of disgust, anger and hatred. She also explained feeling a sense of betrayal that has deeply hurt her and affected her life. [TB], [MB’s] mother, and the mother of [AB] and [HB], provided a victim impact statement in which she explained the emotional impact that the respondent’s offending has had on her and her husband. She tells how the revelation of the respondent’s offending against her daughters has caused her and her husband to feel as though they have failed to protect their children and has caused her husband to harbour significant anger associated with the offending. She explained that she experienced shock, anger, and hatred towards the respondent and feels betrayed. She questions why she didn’t see it happening. She also says that the resultant investigation has impacted the family financially due to the time she and her husband have had to take off of work to assist their daughters and police.[TB] further explains how she observed significant negative behavioural changes in her three daughters that she now understands was a consequence of the offending. She explained that [MB] suffers from severe mental health conditions. In particular, [MB] hates being around people and is scared to trust anyone. [HB] needed to take a term off of school as a result of the matter. She explained that the offending had caused her behaviour to change from a carefree child and teenager to now thinking negatively towards herself and what others think of her. [TB] noted that [HB] had become very depressed and has said on several occasions that she “didn’t want to be here anymore”. [HB] also perceives that other family members think negatively of her for speaking out. [TB] has observed that [AB] had previously been a very active outgoing person but noticed [AB] had become very untrusting and negative towards others and shows angry behaviour. [BM], the respondent’s daughter, provided a lengthy victim impact statement on behalf of herself and her daughter, [AH], the victim in relation to count 4. [BM] explained the heart break and feelings of anger, disgust and betrayal at the revelation that her father was the perpetrator of abuse against her daughter and three other relatives. [BM] explained that [AH] went from being a vibrant and happy child to being withdrawn and scared. Further, she observed [AH’s] eating habits change from eating properly to barely eating. She also observed [AH] engaging in odd behaviour such as touching and rubbing her genitals against sharp objects in the house. She explained that on one occasion she confided in the respondent about [AH’s] pain and mentioned she should take [AH] to the doctor. The respondent, a registered nurse, advised her against taking [AH] to the doctor and persuaded her that she was overthinking the matter, causing her to make decisions contrary to her instincts. [BM] explained that [AH’s] behaviour was uncharacteristic for [AH] and odd for a child [AH’s] age such as incontinence at school and crying and clinging onto her when she would leave for work upon leaving [AH] in the respondent’s care – on occasion it was the respondent who would console and encourage [AH] to let her mother go to work. [BM] explained [AH] has been left confused, angry and hurt by the respondent’s actions and continues to feel like she is to blame. The matter has broken the family and caused inexplicable harm of all kinds to [BM] and [AH]. [BM] explains she is still grieving and reconciling the loss of her family as well as the emotions associated with the abuse suffered by her daughter including dealing with the financial ramifications of seeking psychological help and counselling.(Underlining added)

Ratio Decidendi

Legal Principle Established

For the reasons which follow, I do not agree with some of the criticisms of the sentencing judge’s approach made by the Chief Justice. While I accept that the sentence ultimately imposed was low, I do not think that the disparity between the sentence which was imposed and that which ought to have been imposed was such as to require the intervention of this Court on a Crown appeal against sentence.Consideration These reasons should be read in conjunction with my contemporaneously published reasons in Warner v The King.[15]I refer in particular to the observations I made in those reasons in relation to the rationale for the standard in R v D,[16] its application to individual instances of child sexual abuse offending, and the role that concurrency may play when sentencing an offender for multiple instances of such offending.[15] Warner v The King [2022] SASCA 142.[16] R v D (1997) 69 SASR 413. Against that background, it is appropriate to commence my consideration of the sentence imposed below by addressing the adequacy of the individual starting points identified by the sentencing judge.The individual head sentences As mentioned, the personal circumstances of the respondent have been summarised in the reasons of the Chief Justice. His Honour has also referred to the victim impact statements relied upon at sentencing. As to the circumstances of the offending against each of the four victims, the sentencing judge set these out in some detail in her reasons. They have been adequately summarised for present purposes in the reasons of the Chief Justice. After describing the abhorrent nature of the respondent’s offending, the devastation it caused, and the need to ensure an adequate sentencing response, the sentencing judge referred to the sentencing standard in R v D:In relation to counts one, three and four, the sexual offences particularised include acts of unlawful sexual intercourse with a child under the age of 14 and you abused a position of trust in committing these offences. The sentencing standard in the decision of R v D is therefore relevant and applicable to the offending in counts one, three and four, but for the reasons that follow, some degree of flexibility in the application of that standard should be applied to counts three and four. As outlined in my reasons in Warner v The King,[17] the judge was right to emphasise the flexibility that is appropriate in the application of the sentencing standard in R v D. In each case it will be necessary to have regard to considerations such as the nature and frequency of the offending; the duration of the period over which it occurred; the age of the victim; the impact of the offending upon the victim; and the personal circumstances of the offender.[17] Warner v The King [2022] SASCA 142 at [123] (Doyle JA). The critical passage from the sentencing judge’s remarks, in which she then proceeded to identify the starting points for each of the offences, has been set out in full in the Chief Justice’s reasons.