R v S, SP

[2009] SASC 360

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v S, SP

[2009] SASC 360

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Layton and The Honourable Justice Kourakis)

27 November 2009

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - GENERALLY

Appellant pleaded guilty to one count of persistent sexual exploitation of a child, the maximum penalty for which is life imprisonment - conduct the subject of the charge involved about 20 instances of the appellant encouraging or permitting his daughter, aged between three and six, to touch his penis - appellant sentenced to imprisonment for four years, with a non-parole period of 18 months - sentencing Judge declined to suspend the sentence - appeal against sentence.

HELD: appeal dismissed by majority (Doyle CJ and Kourakis J) - Doyle CJ: whilst there were factors that were capable of supporting suspension, the decision of the Judge not to suspend the sentence did not disclose error - Kourakis J: having regard to the appellant's lack of insight into his offending, it was not unjust or unreasonable to decline to suspend the sentence - Layton J (dissenting): features unique to the appellant, including his early confession of guilt, his voluntary undergoing of cognitive therapy and the fact that imprisonment would jeopardise his rehabilitation were not adverted to by the Judge and justified the suspension of the sentence imposed.

Criminal Law Consoldiation Act 1935 (SA) s 50(1); Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(ec), s 10(1)(j), s 10(4), s 38(1), referred to.
House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357, applied.
Nicholls v Police [2003] SASC 303; R v Jongewaard [2009] SASC 346; R v Spyrou [2008] SASC 209; R v Stevens [2008] SASC 170, considered.

R v S, SP
[2009] SASC 360

Court of Criminal Appeal:  Doyle CJ, Layton and Kourakis JJ

1. DOYLE CJ:          Mr SPS appeals against a sentence imposed by the District Court. He pleaded guilty to a charge of persistent sexual exploitation of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The plea was entered when Mr SPS was first arraigned in the District Court.

2. The maximum punishment for that offence is life imprisonment.

3. A District Court Judge sentenced him to imprisonment for four years.  But for the plea of guilty the Judge would have sentenced him to imprisonment for six years.  The Judge fixed a non-parole period of 18 months.  The Judge declined to suspend the sentence.

4. The appeal challenges the decision not to suspend the sentence.

   Background

5. The case is a sad illustration of the impact on a family of sexual abuse of small children, and of the need for the Courts to do what they can to protect children against sexual abuse.  The protection of children from sexual abuse remains a major issue in our society.

6. Mr SPS is 42 years of age.  Reports from a psychiatrist and two psychologists tendered to the Judge state that he had a good upbringing, in a normal family environment.  There were one or two unhappy aspects, according to one of the reports, but nothing of major significance.  Mr SPS has been employed for most of his adult life.  He married NS in June 2001, when he was about 34 years of age.  A daughter FS was born in September 2002.

7. The marriage appears to have been a happy one.  There was nothing out of the ordinary about it.

8. In late 2005, when FS was three years of age, there was an incident when she touched Mr SPS’s penis out of curiosity.  About a month later Mr SPS invited her to do so again, and she did.  Over the next three years this pattern continued, encouraged or permitted by Mr SPS.

9. There was no overt compulsion applied to FS, but with a child so young parental encouragement was all that was needed.  There was no suggestion that Mr SPS became erect on any occasion or that he ejaculated.  There is no indication that Mr SPS had an interest in child pornography.

10. The offending conduct ended in August 2008.  Mr SPS realised the risk that FS might tell her mother what was happening.

11. In January 2009, as a result of something FS said, her mother NS realised that something was happening.  She confronted Mr SPS, and he made full disclosure to her.  Mr SPS then made full disclosure to Dr Judy Headley, a psychologist to whom he was referred by his pastor.  He made disclosure to her, knowing that she would report the matter to the police.  He has consulted her at least 16 times since then.

12. Not surprisingly, the family has fallen apart.  NS is not prepared to continue living with Mr SPS.  The events have had a significant adverse effect on her health.  She has now lost the family life that she and her husband were building together.  Not surprisingly, FS is puzzled by what has happened.  Her mother has a natural and understandable concern about the impact of the events on FS, particularly as FS matures.  The harm done to NS is clear.  The risk of long term harm to FS is evident.

13. The Victim Impact Statement provided by NS is a moving one.  Her distress is clear.  Her concern about the impact on FS of the offending is understandable.

14. The Judge had the benefit of a report from Dr Raeside, a psychiatrist.  In his opinion Mr SPS does not suffer from a psychiatric disorder nor does he suffer a personality disorder.  A report from Dr White, a psychologist, identifies no psychological or personality disorder.  Dr White describes Mr SPS’s behaviour as “opportunistic” rather than driven by sexual gratification.  He says that SPS did not have insight into the dangers of his conduct.  Dr White states that imprisonment would have “a very negative effect” upon SPS, having regard to a history of him being the victim of bullying and having regard to his personality, which Dr White describes as unassertive.

15. The Judge also had a report from a counsellor, Dr Headley.   She states that Mr SPS is responding well to treatment.  She says that he is “not just remorseful but also truly repentant”.  She believes that Mr SPS will not reoffend.  She argues that in light of the good progress made with her treatment, and the appropriate response to that treatment by Mr SPS, he should not be imprisoned, because this would jeopardise what has been achieved.

16. The reason for the offending remains unclear.  It is fair to say that Mr SPS is unlikely to offend again.

17. The Judge noted the importance of courts doing what they can to protect children from sexual abuse, and for that reason noted the need for a sentence that had a deterrent effect.

18. The Judge noted that this was a grave breach of the law, and that the offending conduct had persisted over a period of time, some three years in all.  He accepted that Mr SPS was contrite and remorseful.

19. The Judge sentenced Mr SPS to imprisonment for four years.  But for the plea of guilty the sentence would have been six years.  He fixed a non-parole period at 18 months.

20. The Judge was not persuaded that there was good reason to suspend the sentence.  He said:

    I have anxiously considered the question of suspension, but I am of the view that the offending is too grave and, though your personal circumstances and lack of criminal record are powerful matters, the need for the courts to send a strong message to the community about this sort of offending overwhelms those matters.

    Consideration of appeal

21. The case is a tragic one.  But it is not atypical, to the extent that it is a case of a male in a position of parental authority abusing a young child within the family home; a case involving a breach of the duty to care for a child; a case in which the family setting is used to facilitate the commission of offences, and a case in which abuse of a child has had a destructive impact on a family unit.

22. Circumstances that are somewhat out of the ordinary are the full disclosure by SPS of his wrongdoing once the offending was uncovered; the complete acceptance of responsibility; the willingness to seek treatment, and the good progress made.  Dr Headley says in her report that to imprison Mr SPS will jeopardise “all the good work” that she has accomplished with Mr SPS.

23. Mr SPS has never been convicted of an offence before and has never been imprisoned.

24. The Judge had a difficult task.  This is the kind of offending that calls for imprisonment, as the Judge said.  There are factors capable of supporting a decision to suspend the sentence.   As I recently pointed out in R v Jongewaard [2009] SASC 346, the issue for this Court is whether the Judge was wrong to reach the conclusion that he did.

25. I pose that question because this Court can intervene only if error by the Judge is established.  This Court is not entitled simply to substitute its opinion as to an appropriate sentence.  The function of this Court was identified by Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25] as follows:

    [25]As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".

26. Mr Rainford, counsel for Mr SPS, did not identify any specific error by the Judge in the sense referred to in that passage.  He argued that the result is unreasonable and is manifestly excessive.  He submits that the Judge should have suspended the sentence.

27. This argument will succeed only if, in the circumstances, this Court is persuaded that it was not open to the Judge to find that there was not “good reason” for suspending the sentence, in exercise of the power conferred by s 38(1) of the Criminal Law (Sentencing) Act 1988 (SA).

28. Mr Rainford acknowledges the significance of s 10(4) of that Act, which provides:

    10    Matters to be considered by sentencing court

    (4)     A primary policy of the criminal law is to protect children from sexual predators by ensuring that, in any sentence for an offence involving sexual exploitation of a child, paramount consideration is given to the need for deterrence.

    But he argues that the Judge must have given too much weight or insufficient weight to a number of particular factors that I will identify.  He puts the submission against the background of the circumstances outlined above, which reveal a number of mitigating circumstances that it is not necessary to repeat.

29. First, Mr Rainford argues that the Judge gave too much weight to the need for deterrence.  He submits that there is no need, or no significant need, to deter Mr SPS.  He has reformed, or is well on the way to reform.  And he argues that a suspended sentence can have a deterrent effect, both specific and general.

30. Second, Mr Rainford argues that the Judge must have given insufficient weight to the substantial progress towards rehabilitation, to Mr SPS’s acceptance of responsibility, and to the circumstance that imprisonment will interrupt the treatment that Mr SPS has been receiving.  He submits, and Ms Barnett for the DPP did not argue to the contrary, that Mr SPS is unlikely to receive any effective treatment for his offending while he is imprisoned.

31. Third, Mr Rainford argues that the Judge must have given insufficient weight to society’s interest in the rehabilitation of Mr SPS.  This is really a variant of the point already made.

32. Fourth, he argues that the Judge must have given insufficient weight to the explanation for the offending which was, Mr SPS told Dr Raeside, that he wanted attention or more attention.  This is apparently a reference to his relationship with his wife.  I have to say that the explanation is unconvincing, without going into the details.  The reason for the offence remains something of a puzzle, and to my mind this is not a matter that advances the case on appeal.

33. Fifth, Mr Rainford points to the circumstance that there is no suggestion that Mr SPS is sexually attracted to children, apart from what one might deduce from the circumstances of the offence in question.  He makes the further point that the case is not a typical sexual offence, but I have already made the point that in a number of respects the case is not atypical.  But I accept that the case is out of the ordinary in some respects, and in particular in relation to the real progress towards rehabilitation that Mr SPS has demonstrated.

34. Overall, Mr Rainford emphasised the substantial matters supporting a finding that there is good reason to suspend the sentence.  He particularly emphasises the progress towards rehabilitation, and the absence of the need for a sentence that will deter Mr SPS from further offending.  He argues that considerations of general deterrence do not stand in the way of a finding that the sentence should be suspended.

35. Ms Barnett emphasised the seriousness of the offence, the prolonged period of offending, and the manner in which Mr SPS had taken advantage of domestic circumstances to commit the sexual acts in question.  She acknowledged the relevance of the points made by Mr Rainford, but argued that the Judge’s sentencing remarks indicate that he had taken all matters into account, and reached a conclusion that was open to him.

    Decision

36. I am not satisfied that the Judge erred.  As I have already remarked, the case is a difficult one.  The Judge rightly emphasised the gravity of the offending and the need to protect children by giving considerable weight to considerations of deterrence.  Sexual offences against young children within a family or domestic setting are prevalent.  They are a serious social problem.  They are usually difficult to detect.  These are all circumstances that the Judge undoubtedly had in mind when emphasising the importance of deterrence.

37. These are the reasons why I am unable to say that the Judge erred.

38. I would dismiss the appeal.

39. LAYTON J:          The appellant relies on the error of the sentencing Judge being that the sentence was manifestly excessive.  The arguments to support that error also, inferentially but without so articulating it, argued that the Judge erred by not taking into account features which were peculiar to the appellant when deciding not to suspend the sentence of imprisonment.  It was argued that the Judge erred in deciding that the seriousness of the offending and general deterrence overwhelmed features personal to the appellant.

40. These errors were said to be primarily evidenced by the following statement of the sentencing judge:[1]

    I have anxiously considered the question of suspension [of sentence], but I am of the view that the offending is too grave and, though your personal circumstances and lack of criminal record are powerful matters, need for the Courts to send a strong message to the community about this sort of offending overwhelms those matters.

    [1]    R v SPS, Sentencing Remarks, 31 August 2009, 4.

41. The appellant’s argument was directed to the latter aspect of this statement.

42. I respectfully agree with the narration of the background offending circumstances as summarised by the Chief Justice.  I also agree that the legal principles which govern this court on appeal indicate that there can be intervention only if error is established.

43. After carefully considering the sentencing Judge’s reasons and also the material before him including the psychological reports, I have concluded that the Judge erred when deciding not to suspend the imprisonment sentence in this case.  A detailed reading of the psychological reports, and in particular that of Dr Headley, has satisfied me that the particular situation and circumstances of the appellant, in combination with his response to his offending and the effect on him of immediate imprisonment for 18 months, are such that the paramount factor of deterrence is best served in this case by a suspension of the term of imprisonment.

44. In setting out my reasons for this conclusion, I start by noting that the offence of persistent sexual exploitation of a child contrary to s 50(1) of the Act is a very serious sexual offence.

45. As this is a sexual offence involving a child, particular provisions of s 10 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) apply. In particular, section 10(4) of the Sentencing Act provides:

    A primary policy of the criminal law is to protect children from sexual predators by ensuring that, in any sentence for an offence involving sexual exploitation of a child, paramount consideration is given to the need for deterrence.

46. Additionally, s 10(1)(ec) provides that a sentencing court should have regard to:

    in the case of a sexual offence committed against a child—the need to give proper effect to the policy stated in subsection (4).

47. Deterrence, of course, involves two particular aspects, namely the specific deterrent effect on a defendant and also a general deterrent effect on others. The two components are also reflected in s 10(1)(j) of the Sentencing Act.

48. Further, I note that the appellant’s offending was serious.  Having stated that, in my view his offending was at the lower order of seriousness of a crime of that type.  In addition to the features set out in the reasons of the Chief Justice, I emphasise the following.

49. The offending took place over three years and began when his daughter was three years of age.  It occurred approximately 20 times over three years and on each occasion for a very brief period (approximately 15 seconds).  At the start the three year old child was unlikely to have had any real understanding of her behaviour in touching her father, which was part of a “game”, although her understanding would have gradually changed towards the end of the offending when she was six.  These matters have some relevance when considering the emphasis placed by the sentencing Judge on “this sort of offending” upon which a “strong message” should be sent to the community. The circumstances of his offending is not so commonplace in the courts and is far less serious than the many distressing cases of sexual offending which come before these courts and which do indeed warrant a “strong message”.

50. As to the personal circumstances of the appellant, there are a number of special and somewhat unique features.  He immediately confessed his behaviour to his wife, his local pastor, a counsellor, then the police and later to two psychologists.  This disclosure included admissions as to earlier behaviour going back three years when the child would have been unlikely to be able to remember the occasions, which would have compounded the already inherent difficulties of proving such charges in court.  His immediate admission is somewhat unusual in cases of sexual offending where denial is instead the common response.  This factor was emphasised in the counselling report of Dr Headley who was treating the appellant. 

51. Dr Headley undertook intensive counselling with the appellant over a period of some eight months; initially on a weekly basis and later on a fortnightly basis, which the appellant paid for himself.  Dr Headley emphasised that the appellant “has not ever presented in the same way as other offenders that I have worked with in therapy”. 

1. The importance of the report of Dr Headley is contained in three paragraphs which I will set out in full:

   4.     [S]’s response to the therapy in terms of rehabilitation.

   [S] responded very well to the cognitive behavioural therapy and brought along his journal entries to show me the ways in which his thought patterns and beliefs were changing in a healthy constructive manner.  He identified his negative beliefs and negative self talk and was able to replace them with positive beliefs and thought patterns.  [S] has undertaken regular reading of positive materials and self help books. [S] has worked hard on developing strength of character, particularly in the areas of encouragement and perseverance.

   [S] has been very committed to the therapeutic process.  He has always done his homework exercises and brought them to show me in the sessions.  I believe that [S] has done everything in his power to fully face and acknowledge the wrong he has done to his daughter and that he has changed the negative belief system that he operated from in the past.  I believe that he is truly repentant for what he has done and that he has already started thinking and acting in different ways.  I have worked with perpetrators in the past who have tried to blame the child for their own actions and have not been repentant.  [S] is not like that.  [S] has at all times faced what he has done and has worked hard at change.

   5.     Any further therapy recommended.

   My recommendations are for [S] to continue to work on building his strengths and keeping positive in the face of difficult circumstances.  A good foundation has been laid and it is now important for [S] to continue to grow in self confidence and self esteem.

   6.The future prognosis and in particular whether you consider there is a likelihood of re-offending.

   [S] has consistently acknowledged that what he did to his daughter was very wrong.  I believe that he is not just remorseful but also truly repentant.  I do not believe that [S] will re-offend.  [S] has not ever presented in the same way as other offenders that I have worked with in therapy.  He has not been defensive trying to justify his actions.  His cognitive patterns and behaviour are those of a reformed person, not someone who is looking to re-offend.  He has been a very compliant client, always willing to face his issues and work on them in his own time, often going well above and beyond what I requested of him.  I do not believe that it would be constructive to put [S] in contact with hardened perpetrators for the purpose of punishment or further therapy.  [S] does not fit in that category.  I believe that such action could jeopardise all the good work that has been accomplished in therapy in terms of undermining self confidence and self esteem.  [S] loves his family and wants what is best for them.  He has realised the error of his ways and does not want to ever do that again.  I would request that consideration be given to the substantial progress made over the last 7 months of therapy as decisions are made by the court.

   (Emphasis added)

2. The sentencing Judge in his remarks referred to the features of remorse, the appellant’s admissions of guilt and gave him credit for his voluntary undertaking of intensive therapy.  Whilst a sentencing Judge cannot refer to all matters in brief reasons for sentence, no mention was made by the Judge in his reasons to three important features which are relevant to deterrence and suspension of any sentence. First, the unique response of the appellant to his offending and to the behavioural changes which had already occurred as a consequence of his cognitive therapy as indicated in Dr Headley’s report. Second, the adverse effect which would occur to the appellant if he was placed in custody as he is a vulnerable personality who would be “extremely vulnerable to threatening behaviour in a prison environment” as indicated in the reports of Dr White and Dr Headley. Third, the concern that imprisonment could jeopardise the good progress already achieved in his rehabilitation. There is limited availability for therapeutic counselling sessions in the prison system and both Dr Headley and Dr White “strongly supported” that the appellant undergo a program in the community rather than imprisonment. Dr Raeside made merely a fleeting comment on these issues as he saw the appellant only once for the purpose of providing a report on the appellant’s mental competence and fitness.

3. In this case it is necessary for the Court to consider the provisions of s 38(1) of the Sentencing Act which allows a court to suspend sentence if the court “thinks that good reason exists”. At the same time the Court was also required to have regard to a primary consideration of deterrence with regard to sexual offending.  A court, when considering whether or not “good reason exists”, is obliged to consider all of the relevant circumstances including the objective features of the offence and importantly, the personal circumstances of the defendant (R v Stevens [2008] SASC 170; R v Spyrou [2008] SASC 209). When considering the primary importance of deterrence, I note that “deterrence” includes both specific and general deterrence.

4. When assessing whether there is good reason to suspend the sentence, the appellant is shown to have special features which should have been acknowledged. These were aspects which should have been taken into account when considering whether or not to suspend the sentence.  In my view, the failure of the Judge to advert to these features and instead to focus upon the type of crime and the need for immediate imprisonment to send a strong message to the community, resulted in error, namely, a failure to suspend.

5. Further, with regard to general deterrence, whilst it has been said that suspension is not usually appropriate where general deterrence is a major factor (Nicholls v Police [2003] SASC 303), each case is, of course, required to be considered on its own merits.

6. In this case, general deterrence may arguably be enhanced by appropriately adjusting the sentence of the appellant. It would serve as an example to encourage sexual offenders to acknowledge their wrong behaviour by early frank admissions and undergoing appropriate therapeutic interventions. In cases involving sexual offending of young children, this process is arguably one of the most effective ways of achieving longer term general deterrence of offending against children in the community.  This is not, of course, a principle of general application to all cases or all circumstances. It is however appropriate in this case.

7. Having regard to all of these matters, I have concluded that the Judge erred and that it is appropriate to set aside the sentence which was, in the result, manifestly excessive in this case.

8. In re-sentencing I take into account that the appellant has already been in custody for some 12 weeks.  The Court was informed at the hearing that he has not been the subject of any counselling during that period of time.  I consider that the overall sentence of imprisonment should remain the same as that ordered by the Judge namely a sentence of four years (after allowing for the same deductions as the sentencing Judge) with a non‑parole period of 18 months.  I would then suspend that sentence upon him entering into a bond to be of good behaviour under supervision for a period of three years.  It is important that, as a condition of the bond, he be placed on an appropriate regime of counselling.  Bearing in mind the terrible aftermath of the offending with the separation of the family, one can only hope that at some point a counselling regime may involve both the mother and the child.  However, this latter aspect in particular is a matter which can not be dealt with by this court, but by others.

9. I would therefore make the following orders:

   1That the sentence of the learned sentencing Judge be set aside.

   2That the appellant be sentenced to imprisonment for a period of four years with a non‑parole period of 18 months.

   3That that sentence be suspended upon the appellant entering into a good behaviour bond with supervision which should include the need to continue with psychological counselling as required by the Correctional Services Officer.

10. KOURAKIS J       I have had the advantage of reading the draft judgment of the Chief Justice in this matter.  I gratefully rely on the Chief Justice’s summary of the background facts and the arguments presented to this Court on appeal.

11. The appellant essentially complains that the Judge placed too much weight on deterrence and insufficient weight on the prospects for rehabilitation.  On an appeal against sentence, the Court of Criminal Appeal cannot set aside the exercise by a sentencing Judge of his or her discretion on the grounds that it would have attached a different relative weight to the relevant considerations.[2]  It is an appealable error to fail to have regard to a relevant matter or to take into account an extraneous matter.[3]  The appellant has failed to demonstrate either error.  In particular, the appellant has not shown that the Judge failed to have regard to his personal circumstances; indeed the Judge referred to those circumstances and the appellant’s lack of criminal record as powerful matters.

    [2]   House v The King (1936) 55 CLR 499 at 504-5 per Dixon, Evatt and McTiernan JJ.

    [3]  House v The King (1936) 55 CLR 499 at 505; Makarian v The Queen (2005) 228 CLR 357 at 370-1, [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ.

12. In the absence of a patent error vitiating the exercise of the sentencing discretion it can only be set aside if it is shown to be plainly unjust or unreasonable.[4]  For the reasons that follow, I would hold that the sentence falls within the bounds of a reasonable and proportionate sentencing response to the appellant’s offending.

    [4]  House v The King (1936) 55 CLR 499 at 505; Makarian v The Queen (2005) 228 CLR 357 at 370-1, [25].

13. I start by acknowledging that there will be cases where a sentence for sexual offending against children may be suspended notwithstanding the great weight which must be accorded to the protection of children from sexual predators and the resulting need for a sentence which is effective in providing personal and general deterrence  However it is appropriate, and indeed necessary, that a sentencing court carefully scrutinise the material presented by such an offender in support of his case that there are good reasons to suspend.  When carefully scrutinised, the material presented by the appellant is found to be wanting.

14. In the course of an interview by the psychiatrist Dr Raeside on 11 June 2009, the appellant explained his conduct as an attempt to “seek a little bit of attention”.  He initially said his conduct “was not really sexual”.  However, a little later in the interview Dr Raeside reported that the appellant said that he “believed that he was getting ‘enough’ sexual attention from his wife and was therefore unsure why he would do this with his daughter” and that the appellant “still ‘struggled’ to understand why he asked his daughter ‘for a bit more’”.  When Dr Raeside attempted to better understand those answers the appellant explained:

    I wasn’t getting sex every day, maybe if I was getting that then I might not have wanted more attention, but I was getting enough, perhaps once or twice a week, sometimes more.

15. Later again the appellant told Dr Raeside that he believed that his behaviour was due to the “devil’s influence”.  He informed Dr Raeside that if he had been baptised earlier that influence “would not have got into my mind because I would have been cleansed from baptism”.  It is not surprising in the light of those answers that Dr Raeside reported that “the significant issues seem to be that he was externalising some of the responsibility for his behaviour…”.

16. The opinion of Dr White, a psychologist, that the appellant was unlikely to re-offend and had good prospects for rehabilitation is substantially undermined by the way in which Dr White described the offending.  First, Dr White described the offending as “opportunistic rather than behaviour driven by sexual gratification per se”.  I do not understand how that conclusion could have been reached having regard to the very nature of the offending and the connection the appellant himself drew, in his consultation with Dr Raeside, between his sexual relationship with his wife and the reason for offending against his daughter.  Secondly, the grave nature of the appellant’s offending is not, in my view, sufficiently addressed in the following passage from Dr White’s report:

    In my opinion [S] did not recognise or have insight into the dangers associated with child – adult genital play.  [S] perceived the activity he had instigated with his daughter was exciting but also realised it was wrong.

17. The appellant had consulted Dr Headley, a counsellor.  Dr Headley does not profess to have any formal qualifications in psychology or psychiatry.  Dr Headley’s optimistic assessment of the progress the appellant made in the course of counselling is much undermined by the poor insight into his offending demonstrated by the explanation for it which he gave Dr Raeside.  The interview with Dr Raeside took place after the appellant had undergone many months of counselling by Dr Headley.

18. I accept that because of the very young age of the appellant’s daughter and the nature of the conduct, the offending may not have been as immediately traumatic as other distressing cases which come before the Court.  However, I would not place much weight on that circumstance.  The development of a healthy and robust personal identity depends, at least in part, on childhood experiences within, what should be, the protected environment of the home.  Offending of the type of which the appellant was convicted should be taken to carry with it a serious risk to a child’s personal development.

19. The very serious lack of insight demonstrated by the statements to which I have referred more than adequately explains why the Judge was not satisfied that there was good reason to suspend the sentence he imposed.  Having regard to those statements, I am not satisfied that it was plainly unjust or unreasonable to refuse to suspend the sentence of imprisonment in this case.  I would dismiss the appeal.