R v Sansbury

[2007] SASC 396

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SANSBURY

[2007] SASC 396

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice White)

12 November 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES

Appeal against sentence - appellant pleaded guilty to three counts of unlawful sexual intercourse - Judge imposed sentence of imprisonment for 2 years 8 months, non-parole period 16 months - whether sentence manifestly excessive - whether Judge erred in failing to suspend sentence.

Held: Appeal allowed.

Criminal Law Consolidation Act 1935 (SA) s 49(3), s 364(3); Acts Interpretation Act 1915 (SA) s 16(1)(d); Criminal Law (Sentencing) Act 1988 (SA) s 10(4), s 18A, referred to.
Samuels v Songaila (1977) 16 SASR 397; Lomas & Symmons [2005] SASC 435, applied.

R v SANSBURY
[2007] SASC 396

Court of Criminal Appeal:  Doyle CJ, Nyland and White JJ

1. DOYLE CJ:          Mr Sansbury appeals against a sentence imposed on him by the District Court.  A single Judge has granted permission to appeal.

2. Mr Sansbury pleaded guilty to three counts of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). Each offence was committed on the same occasion, involving the same young woman.

3. When the offences were committed, the maximum penalty for this offence was imprisonment for 7 years. The maximum has since been increased. However, the applicable maximum penalty is that which was in force when the offences were committed: see s 16(1)(d) of the Acts Interpretation Act 1915 (SA) and Samuels v Songaila (1977) 16 SASR 397.

4. Exercising the powers conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”), the Judge imposed a single sentence for the three offences. The Judge sentenced Mr Sansbury to imprisonment for two years eight months, and fixed a non-parole period of 16 months. But for the plea of guilty, and the indications of contrition, the Judge would have sentenced Mr Sansbury to imprisonment for three years six months. The Judge declined to suspend the sentence.

5. Mr Sansbury appeals on two grounds.  First, on the ground that the sentence is manifestly excessive.  Second, on the ground that the Judge erred in failing to suspend the sentence.

   The circumstances of the offences

6. The offences were committed on 20 March 2006 at Point Pearce on the Yorke Peninsula.

7. At the time of the offences Mr Sansbury was 27 years of age.  The victim, Ms TH, was 14 years old.

8. Mr Sansbury was originally charged with three counts of rape.  A plea of guilty on alternative counts of unlawful sexual intercourse was accepted by the Director of Public Prosecutions in satisfaction of the information.  That plea was accepted on the basis that Mr Sansbury believed that Ms TH was consenting to the acts of intercourse, although she did not in fact consent.

9. On Saturday 19 March 2006 Mr Sansbury was drinking with a friend, Mr MB.  While at a local hotel the men were invited to attend a party at a nearby house.  They went to the party about 8.30 pm.  Mr Sansbury continued to drink.

10. The only detailed description of the relevant events came from Ms TH.  Mr Sansbury said that, as a result of the alcohol he had consumed that night, he had no memory of the relevant events.  He was sentenced on that basis.

11. Ms TH arrived at the party earlier in the day.  She was not an experienced drinker.  She consumed alcohol.  During the evening she realised she was drunk.  This was at about midnight.  Not much later she vomited.  She decided that she should go to sleep.  She went to a bedroom in the house, where a cousin of hers, with whom she felt safe, was already asleep.  She fell asleep.

12. There had been no direct contact between Ms TH and Mr Sansbury prior to this.  She had not met Mr Sansbury before this day.

13. At about 3.30 am on Sunday 20 March 2006 Ms TH was woken by her cousin Mr MB, who led her from the house to a motor car parked at the front of the house.  The motor car belonged to Mr Sansbury.  He was sitting in the driver’s seat.  Mr MB more or less pushed her into the front seat of the motor car.  He was touching her bottom and vagina on the outside of her clothing.  Mr MB got into the motor car, so that Ms TH was between Mr Sansbury and Mr MB.  Mr MB continued to touch her inappropriately, on the outside of her clothing.

14. Mr Sansbury then drove the motor car to Mr MB’s house, and Mr MB got out of the car.  According to Ms TH, Mr MB said to Mr Sansbury “don’t take her home … drop her off back around the corner”.  Ms TH was pretending to be asleep, and said that she did fall asleep at about that time.  After a little while she woke up, and realised that she was at Point Pearce.  She continued to pretend that she was asleep.  Mr Sansbury made some comments to Ms TH, indicating that he intended to have sexual intercourse with her.  She did not respond, continuing to pretend that she was asleep.  She said that she was scared, and thought that when the motor car stopped at Point Pearce, she would run to a relative’s house.  However, she was unable to open the door of the car when it stopped.

15. Mr Sansbury had driven to his home at Point Pearce.  He led Ms TH into the house and into his bedroom.  There the three acts of unlawful sexual intercourse took place.  They were acts of fellatio, cunnilingus and digital and penile penetration.  Later Mr Sansbury drove Ms TH to the house where the party had taken place.

16. I emphasise that Mr Sansbury pleaded guilty and was sentenced on the basis that he believed throughout these incidents that Ms TH was willing to have intercourse with him.

17. Not surprisingly, the incident has had adverse effects on Ms TH.  She is afraid of coming across people who know Mr Sansbury.  She is embarrassed by the fact that other people know about the incident.

    Mr Sansbury’s circumstances

18. Mr Sansbury was 28 years of age when sentenced.  Although he had committed a number of offences, none of them were serious.  A number of them related to the use of motor vehicles, and two of them involved driving after consuming alcohol.  None of his prior offending involved sexual misconduct.

19. Mr Sansbury had a normal childhood.  He completed Year 12 at school.  He began a tertiary course in Aboriginal community studies, but then deferred completion of that course to take up employment.  He is an accomplished sportsman.  He has maintained employment since deferring his studies.  At the time of the offences he worked as a farmhand.  His employer provided a reference, and states that Mr Sansbury was a good worker, and was an important element of the employer’s business.

20. Other material provided to the Judge indicates that Mr Sansbury is well regarded by those who know him within the Point Pearce community.  He appears to be regarded as something of a leader, in part because of his sporting skills, but also because of other achievements.  Mr Sansbury has the support of his family and relatives.

21. Mr Sansbury is a man whose prospects appear to be good, provided that he can deal with his tendency to consume alcohol to excess.  The material before the Judge indicates that “binge drinking” has been a feature of his life.

22. A pre-sentence report states that Mr Sansbury is ashamed of his conduct, and is contrite.  He accepts that his conduct will have an effect on him as a member of the Point Pearce community, because what he has done is not acceptable within that community.  Mr Sansbury appears to understand that he needs to moderate his consumption of alcohol, and to manage it much better than he does.  He is taking steps to do so.

    The Judge’s approach to sentencing

23. The Judge made it clear that he did not sentence Mr Sansbury on the basis that he was a party to Mr MB putting Ms TH into the vehicle and into a situation in which she was vulnerable, if that is what Mr MB intended to do.

24. The Judge acknowledged that Mr Sansbury had been a productive member of his community, and had already experienced the disapproval of that community.

25. The Judge said that deterrence was a “paramount sentencing consideration”. I agree. Section 10(4) of the Sentencing Act states:

    10(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.

    The purpose of s 49(3), creating the offence to which Mr Sansbury pleaded guilty, is to protect young persons from their own immaturity, and from any sexual exploitation of that immaturity. This is a long standing policy of the law, and is well known within the community. The Courts must continue to uphold that policy.

26. The Judge said that there were a number of aggravating circumstances.  He referred to the disparity in their ages, and in that respect was correct.  Another aggravating circumstance was that Ms TH did not consent to what happened, although Mr Sansbury was unaware of this.  A further aggravating circumstance, the Judge said, was that there was “… a premeditated and predatory aspect to your behaviour”.  It had taken some time to drive to Point Pearce, and it was plain that in doing this Mr Sansbury intended to have intercourse with Ms TH.  The offences were not a spur of the moment event.

27. The Judge acknowledged that Ms TH was intoxicated, but rightly made the point that Mr Sansbury exploited her youth and her vulnerability resulting from her intoxication.

28. These are the main matters to which the Judge made reference when considering the appropriate sentence.  As I said earlier, he imposed a single sentence of imprisonment for 2 years 8 months, and fixed a non-parole period of 16 months.  He said that there was no good reason to suspend the sentence of imprisonment.

    Submissions on appeal

29. Mr Dixon, counsel for Mr Sansbury on appeal, criticised some aspects of the Judge’s approach.

30. He submits that the Judge erred in treating as an aggravating circumstance the fact that Ms TH did not consent to the offending conduct, although Mr Sansbury was unaware of this.  He makes the point that Mr Sansbury pleaded guilty on the basis that he believed that Ms TH was consenting, and was to be sentenced on that basis.  In the circumstances there is and can be no suggestion of a reckless disregard of indications that his belief was not correct.

31. In my opinion the Judge erred in this respect. The absence of the consent of the victim is not an element of the offence under s 49(3). The purpose of the law is to protect young persons against their own immaturity. In some circumstances, particularly when the victim and the offender are of a similar age, the fact that the victim willingly engaged in the conduct in question might be a mitigating circumstance, to which some weight can be given. But in the present case it seems to me that the fact, unknown to Mr Sansbury, that Ms TH was not consenting, cannot be an aggravating factor.

32. The sentencing Judge had been referred to a decision of this Court in R v Lomas & Symmons [2005] SASC 435. That was an appeal against sentence, the sentence being imposed for an offence against s 49(3) of the Criminal Law Consolidation Act. In the course of her reasons Vanstone J said in passing that the fact that the victim in that case did not consent was a circumstance of aggravation: at [42]. It may be that her Honour is doing no more than referring to a submission that was put to her. Neither of the other Judges referred to this point.

33. In my respectful opinion, the fact that, unknown to the offender, the victim of an offence against s 49(3) does not consent to the act in question is not an aggravating circumstance, because it is something unknown to the offender and something which, in most cases at least, there is no reason for the offender to contemplate. There is no suggestion in this case that Mr Sansbury disregarded indications that Ms TH might not be consenting.

34. So in that respect I agree that the Judge has erred.

35. Mr Dixon also criticises the Judge’s comment that there was “a pre‑meditated and predatory aspect to your behaviour”.  At first glance this remark does suggest that the Judge proceeded on the basis that Mr Sansbury was or should have been aware that Ms TH was not willing to engage in intercourse with him.  But I am satisfied that that is not what the Judge meant.  First, earlier in his reasons he emphasised that he was not sentencing Mr Sansbury on the basis that Mr Sansbury was a party to Mr MB having putting Ms TH in a situation in which she was vulnerable.  Second, further remarks by the Judge make it quite clear that he was referring only to the fact that once Mr MB had been dropped off, and Mr Sansbury was alone with Ms TH, Mr Sansbury drove some distance to Point Pearce, planning to have intercourse with Ms TH.  The point the Judge was making was that this was not an impulsive act, and that Mr Sansbury was intending to exploit the immaturity of Ms TH, and the fact that she was intoxicated.  This is not inconsistent with the basis of the plea, namely, that Mr Sansbury believed that Ms TH was willing to have intercourse with him.  The Judge’s remarks reflect a conclusion, rightly reached, that Mr Sansbury was prepared to exploit the fact of Ms TH’s vulnerability, and the circumstances in which she (as he believed it) was willing to have intercourse with him.

36. I do not accept that criticism of the Judge’s approach to sentencing.

37. It follows that the Judge has erred in one respect, and the matter on which he erred is a significant one.  It is likely to have affected the sentence that the Judge imposed.  Accordingly, the sentence should be set aside and Mr Sansbury should be re-sentenced.

38. In considering the appropriate sentence, I take much the same approach as did the sentencing Judge. Apart from the error that I have identified, I agree with his general approach, and it is one that I adopt. Mr Sansbury is to be sentenced on the basis that he took advantage of a young woman in a vulnerable position, and on the basis that his conduct offends against a clear legal and social policy, and against a policy that is now a “primary policy” of the criminal law. There are substantial mitigating circumstances that are to be taken into account in his favour, but the seriousness of the offending must be recognised. So must the policy behind s 10(4) of the Sentencing Act, which came into effect on 11 August 2005. Taking all things into account, I would impose a single sentence of imprisonment, exercising the powers conferred by s 18A of the Sentencing Act. I would order that Mr Sansbury be imprisoned for a period of two years. That sentence is not much less than that which the Judge imposed, but reflects the fact that the circumstance of aggravation relied upon by the Judge is not a circumstance of aggravation.

39. In fixing a non-parole period, I take account of Mr Sansbury’s circumstances.  I am particularly influenced by the fact that he has not previously been imprisoned, and by the fact that the prospects of rehabilitation are good.  It is appropriate to fix a relatively low non-parole period.  I would fix a non-parole period of 12 months.

40. The question of whether there is good reason to suspend the term of imprisonment is particularly difficult.  I consider that Mr Sansbury is likely to benefit from an exercise of clemency.  The fact that his prospects of rehabilitation are good also supports a decision to suspend the sentence.  On the other hand, the legislative policy that Parliament has expressed cannot be overlooked.  The fact that Mr Sansbury is regarded by some as something of a leader in his community, because of his achievements, seems to me to cut both ways.  This factor could support a decision to suspend the sentence, to encourage Mr Sansbury to return to his community and to play a productive part in that community.  On the other hand, it could be said that if a person in his position receives the benefit of a suspended sentence, that will send the wrong message to members of his community about the consequences of exploiting young persons for sexual purposes.  In this connection Mr Sansbury’s age is of some relevance.  If he were a good deal younger, and closer in age to Ms TH, it would be easier to conclude that a suspended sentence is appropriate.

41. After much thought I have come to the conclusion that the sentence should not be suspended.  While there are significant matters supporting a decision to suspend, they are outweighed by the need to reflect the policy enunciated by Parliament, having regard to the circumstances of the particular case.  It is not that it will never be right to suspend a sentence imposed for this offence.  My conclusion is that in this particular case the circumstances supporting a decision to suspend are outweighed by the community interest in deterring offending of this kind.

    Conclusion

42. For those reasons I would allow the appeal, set aside the sentence imposed by the District Court, impose a single sentence of imprisonment for 2 years, and fix a non-parole period of 1 year. But for the pleas of guilty, I would have imposed a head sentence of the order of two years and eight months. I would order that the sentence of imprisonment and the non-parole period operate from 22 June 2007, the date when Mr Sansbury was sentenced in the District Court. I would make that direction for the purposes of s 364(3) of the Criminal Law Consolidation Act, so that the operation of the head sentence and non-parole period is not treated as interrupted pending the determination of the appeal.

43. NYLAND J:          I agree that the appeal should be allowed for the reasons expressed by the Chief Justice and I agree with the sentence proposed by him.

44. WHITE J: I agree with the orders proposed by the Chief Justice and with his reasons.