R v S, N

[2010] SASCFC 54

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v S, N

[2010] SASCFC 54

Judgment of The Court of Criminal Appeal

(The Honourable Justice Anderson, The Honourable Justice David and The Honourable Justice Peek)

15 November 2010

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TOTALITY - GENERAL PRINCIPLES

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against sentence – appellant pleaded guilty to three counts of indecent assault and eight counts of unlawful sexual intercourse against his stepdaughter and niece – offending ‘in the worst category of such offending’ – Judge imposed sentence of 31 years imprisonment reduced to 26 years for plea of guilty with a non-parole period of 17 years – whether sentence was manifestly excessive – whether sentence should have been reduced to take into account totality.

HELD: (Anderson and David JJ) appeal allowed – total head sentence is ‘crushing’ – head sentence and non-parole period should be reduced to make allowance for the principle of totality – appellant re-sentenced to 21 years imprisonment with a non-parole period of 14 years.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Rossi (1988) 142 LSJS 451; Postiglione v The Queen (1997) 189 CLR 295; R v Place (2002) 81 SASR 395; R v Randall-Smith & Davi (2008) 100 SASR 326, applied.

R v S, N
[2010] SASCFC 54

Court of Criminal Appeal:       Anderson, David and Peek JJ

1. ANDERSON J:     I agree that the appeal should be allowed and that the sentence should be a head sentence of 21 years with a non-parole period of 14 years. I agree with the reasons of David J.

2. DAVID J:              The appellant appeals against a sentence imposed upon him in respect of three counts of indecent assault and one count of unlawful sexual intercourse against his stepdaughter (who I will refer to as “A”), and seven counts of unlawful sexual intercourse upon his niece (who I will refer to as “T”).

3. The offending represented a course of conduct against each child between May 1978 and October 1983.  At the time these offences occurred both victims were under the age of 12 years, and at the time of sentence (22 July 2010) the appellant was aged 56 years. 

4. The sentencing Judge imposed a total head sentence of 31 years. After taking into account pleas of guilty, he reduced the head sentence to 26 years. He set a non-parole period of 17 years. The Judge arrived at his sentence by firstly, imposing a single sentence of imprisonment for 14 years for the offences against A, and reducing that to 11 years and 6 months to give him credit for his pleas of guilty. He then imposed a separate head sentence of 17 years for the offences against T, and reduced that to 14 years and 6 months to give the appellant the appropriate benefit for his pleas of guilty. In both of those sentences he utilised s 18A of the Criminal Law (Sentencing) Act 1988 (SA). He then ordered both head sentences to be served cumulatively, resulting in a total head sentence of 26 years. He set a non-parole period of 17 years, and made no reduction on account of totality.

5. The appellant now argues that the head sentence and non-parole period are manifestly excessive. He argues that the head sentence arrived at should have been reduced to take into account totality.  There is no argument before this Court that the method by which the sentencing Judge went about his task was in any way at fault.  Nor was there any argument that the total head sentence of 26 years, reduced from 31 years, was erroneous, other than that no reduction was made for totality.  That is the sole basis of the argument on appeal. 

   The offending

6. The circumstances of the offending are appalling in their nature.  The sentencing Judge, quite understandably, described the offending against both victims as being “in the worst category of such offending”.

7. A was the appellant’s stepdaughter.  When she was about four years of age, she was living with the appellant and her mother, to whom the appellant was married, and an older half-sister.  They all lived in a house in Port Augusta.  The other victim, T, is the daughter of the appellant’s sister, and because of T’s mother’s inability to look after her, she eventually came to live with the appellant’s family at the house in Port Augusta.

8. The first count of indecent assault upon A occurred when she was about four years of age.  The appellant forced her to grab his penis through the use of threats.  On the same occasion, he committed a further offence of indecent assault upon her by touching her in the area of the vagina, and then committed an act of unlawful sexual intercourse.

9. Just before A turned five years of age, the family had moved to a different house in Port Augusta.  There were a number of occasions when the appellant came into her room and indecently assaulted her by touching her on the outside of her vagina.  These are part of an uncharged course of conduct in respect of the background to the specific offending. 

10. On moving to a third house in Port Augusta, the appellant committed the third count of indecent assault by touching A on the outside of her vagina when she was in bed with the appellant and her mother.  Once again, the touching which was the basis of that specific count of indecent assault occurred against a background of regular visits by the appellant to her bedroom, whereby he would indecently assault her by touching her.  When A was about 10 years of age, and the family moved to a fourth house in Port Augusta, there were uncharged occasions of improper kissing and touching of the outside of her vagina by the appellant.

11. There was material before the sentencing Judge to the effect that A was terrified of the appellant and eventually told her mother what was happening, but because there was no support she eventually left the home.

12. The series of offending against T was also against a background of uncharged sexual abuse.  The first count of unlawful sexual intercourse against T occurred when T went to an outside toilet.  The appellant followed her out there, and had anal sexual intercourse with her.  She was then under the age of 12 years.  The appellant repeated that offending, also out in the toilet, a few days later. There were three more charges of unlawful sexual intercourse whilst T was under the age of 12 years, and four more when she was about 13 years of age. They were against a background of continuous acts of unlawful sexual intercourse, both vaginally and by means of forced acts of fellatio.  This once again was against a background of continual uncharged acts of indecent assault.

13. At the time of sentencing the appellant was aged 56 years and had no relevant prior offending.  The appellant suffers from poor health, including emphysema and lung cancer, for which he required surgery and chemotherapy.  When first arraigned in the District Court on 7 April 2008, he pleaded not guilty to all charges, but eventually pleaded guilty after a pre-trial application but before his trial had started.  The sentencing Judge reduced the head sentence because of pleas of guilty from 31 years to 26 years which was, in those circumstances, generous.

14. The offences themselves to which the appellant had pleaded guilty, generally speaking, occurred between May 1978 and October 1983, when A was between three years and 11 years of age, and T was between seven years and 13 years of age.  However, they were against a background of continual similar serious abuse against both victims.  All charges of indecent assault committed on A carried a maximum penalty of 10 years imprisonment, and the charge of unlawful sexual intercourse upon A carried a maximum penalty of life imprisonment because she was under the age of 12 years.  Two of the charged offences of unlawful sexual intercourse against T carried a maximum penalty of seven years because she was over the age of 12 years, whilst the remaining five charges of unlawful sexual intercourse committed on T carried a maximum penalty of imprisonment of life because she was under the age of 12 years. 

    Appeal

15. There was only one ground of appeal, namely, that the sentence was manifestly excessive.  Permission to appeal was granted in relation to that ground.  Furthermore, the point raised on appeal was a very specific one.  There was no dispute that the sentencing Judge was correct in the way he went about setting two sentences in relation to each of the victims.  There was no argument that the reduction for pleas of guilty, for each set of sentences which were imposed, was inappropriate.  Further, there was no argument that ordering that those two head sentences be served cumulatively was inappropriate. What is argued is that having reached a head sentence 26 years, the sentencing Judge should have then considered the question of totality and reduced the sentence accordingly.  In his sentencing remarks, having imposed a head sentence of 26 years, the Judge said “I do not consider that I should make any adjustment to that sentence for totality”. 

16. Mr Muscat SC, for the appellant, now argues the Judge was in error in not reducing the head sentence to take into account totality.

    Totality

17. There are a number of well-known authorities dealing with the sentencing principle of totality.  As King CJ stated in R v Rossi:[1]

    There is a principle of sentencing know as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.

    [1] (1988) 142 LSJS 451, 453.

18. Also in the High Court decision of Postiglione v The Queen, McHugh J said:[2]

    Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.

    [2] (1997) 189 CLR 295, 308.

19. Mr Muscat SC argues that the present sentence comes within those principles, and that despite the seriousness and depravity of the offending, a head sentence of 26 years becomes “so crushing as to call for the merciful intervention of the court by way of reducing the total effect.”[3]

    [3]    R v Rossi (1988) 142 LSJS 451, 453.

20. Mr Wells, counsel for the respondent, argues that although the sentence imposed is a harsh one, nevertheless, that was justifiable.  He submits that the sentencing Judge has quite properly placed the offending in the “worst category of such offending”, and points out the obvious supporting reasons, namely, that it was prolonged offending over a lengthy period of time, the appellant was in a position of loco parentis with both victims and involved a gross breach of trust, the victims were very young and vulnerable, and there were occasions of emotional and physical violence.  He submits that in those circumstances, the sentencing Judge was correct in refusing to make any adjustment to the sentence for totality.

    Conclusion

21. I acknowledge the force of Mr Wells’ argument. I agree that the Judge has gone about his task correctly. Sentencing for sexual offences on young children, when the offending took place over a number of years and against a background of many uncharged acts, is a very difficult process. In my view, the Judge’s method of grouping the offences and setting two terms pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) was a proper way of proceeding. Furthermore, the Judge was correct in reducing the head sentences for the benefit of the pleas of guilty in relation to both sets of offending. Also, there can be no argument about his decision to make one sentence in relation to one victim cumulative upon the other. It appears a logical and sensible thing to do because he was dealing with two different victims. He was also correct in looking at the question of totality at the very end, in accordance with the principle set out in R v Place[4] and R v Randall-Smith & Davi.[5]There can be no argument about how the Judge has dealt with the matter thus far.  However, in my view, the total head sentence of 26 years imprisonment is a crushing one. 

    [4] (2002) 81 SASR 395.

    [5] (2008) 100 SASR 326.

22. The appellant is in poor health and is 56 years of age.  A sentence of 26 years puts him in a situation where he could not hold out a proper measure of hope for, and encouragement to, “rehabilitation reform”.[6] Although the comparison of sentences is fraught with risk and is often unhelpful, it needs to be noted that the head sentence in this case is significantly greater than any other like offences imposed in this State.

    [6]    R v Postiglione (1997) 199 CLR 295, 341 per Kirby J.

23. In my view, the Judge has erred in not reducing, to a certain degree, the head sentence to make allowance for the principle of totality.  I would therefore allow the appeal and set aside the sentence.

    Re-sentencing

24. I have already indicated that I agree with the process undertaken by the sentencing Judge except for the last step of making no allowance for totality.  In re-sentencing I agree with the head sentence of 26 years, and the way in which it has been arrived at. However, I would reduce that to a head sentence of 21 years. I would set a non-parole period of 14 years.

25. PEEK J:   I have read in draft the Judgments of Anderson and David JJ.

26. I agree with the proposed order that the appeal should be allowed, but I consider that the fresh sentence proposed by their Honours remains somewhat too high.  I indicate that I would be in favour of imposing a fresh single sentence pursuant to Criminal Law (Sentencing) Act 1988 s18A being a head sentence of 18 years with a non-parole period of 12 years.