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

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.
The maximum punishment for that offence is life imprisonment.
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.
The appeal challenges the decision not to suspend the sentence.
Background
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…

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 S, SP

Details

AGLC: R v S, SP [2009] SASC 360
Case: [2009] SASC 360
Decision Date: 27 November 2009

CaseChat Overview and Summary

The appeal in R v S, SP concerns the sentencing decision made by a lower court judge in relation to the appellant's conviction for persistent sexual exploitation of a child. The appellant, Mr SPS, was sentenced to imprisonment for four years, with a non-parole period of 18 months. The primary legal issue before the court was whether the sentencing judge erred in declining to suspend the sentence imposed on the appellant.

The appellant argued that the sentencing judge erred in not suspending the sentence, primarily due to the appellant's early confession of guilt, voluntary participation in cognitive therapy, and the risk that imprisonment would jeopardise his rehabilitation. The Crown, on the other hand, contended that the gravity of the offence, the prolonged period of offending, and the need for deterrence outweighed the appellant's personal circumstances.

The majority of the court, comprising Doyle CJ and Kourakis J, dismissed the appeal. Doyle CJ held that although there were factors supporting suspension, the sentencing judge's decision not to suspend the sentence did not disclose an error. Kourakis J agreed, emphasising that given the appellant's lack of insight into his offending, it was not unjust or unreasonable for the judge to decline to suspend the sentence. Layton J, in dissent, found that the sentencing judge had not properly considered the appellant's unique circumstances, such as his early confession, engagement in therapy, and the negative impact of imprisonment on his rehabilitation, which justified the suspension of the sentence.

In conclusion, the majority decision to dismiss the appeal was based on the view that the sentencing judge's decision, while difficult, was within the bounds of acceptable judicial discretion. The dissenting opinion highlighted the need for the sentencing judge to more comprehensively consider the appellant's personal circumstances.

Orders

Orders of the court

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Background

Background to the litigation

The appeal challenges the decision not to suspend the sentence.Background 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. 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. The marriage appears to have been a happy one. There was nothing out of the ordinary about it. 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. 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. The offending conduct ended in August 2008. Mr SPS realised the risk that FS might tell her mother what was happening. 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. 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. 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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KOURAKIS J (dissent)

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 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. These are the reasons why I am unable to say that the Judge erred. I would dismiss the appeal. 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. 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. The appellant’s argument was directed to the latter aspect of this statement. 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. 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.

Ratio Decidendi

Legal Principle Established

Established by:

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