R v SEARS

[2019] SASCFC 63

Supreme Court of South Australia

(Court of Criminal Appeal)

R v SEARS

[2019] SASCFC 63

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Auxiliary Justice David)

6 June 2019

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

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

In 2018, the appellant was convicted of one count of persistent sexual exploitation of a child contrary to section 50(1) of the Criminal Law Consolidation Act 1935 (SA). He was sentenced to a term of imprisonment of 11 years with a non-parole period of seven years. The appellant appeals against his sentence on the basis it is manifestly excessive.

Whether the sentencing Judge gave appropriate consideration to appellant’s personal circumstances – low intellectual functioning – deprived upbringing – physical disability – whether the sentence is manifestly excessive

Held per David AJ (Kelly and Stanley JJ agreeing), dismissing the appeal:

1. The sentencing Judge correctly considered and weighed the factors before him, including the personal circumstances of the appellant.

2. The sentence imposed by the sentencing Judge is not manifestly excessive.

Criminal Law Consolidation Act 1935 (SA) s 50(1), referred to.
R v D (1997) 69 SASR 413; Bugmy v The Queen [2013] HCA 37, considered.

R v SEARS
[2019] SASCFC 63

Court of Criminal Appeal:  Kelly and Stanley JJ, David AJ

1. KELLY J:             I agree that the appeal should be dismissed for the reasons given by David AJ. 

2. STANLEY J:         I would dismiss the appeal.  I agree with the reasons of David AJ.  I would add that although there is much in the appellant’s personal history that calls for sympathy, the prevailing concern in cases of this kind is the protection of the public and children in particular. Notwithstanding that the appellant’s childhood exposure to violence and abuse may explain his subsequent offending such as to reduce his moral culpability for his inability to control his deviant sexual impulses, as the plurality of the High Court observed in Bugmy v The Queen,[1] that very consideration increases the importance of protecting the community from the appellant. 

   [1] [2013] HCA 37 at [44], (2013) 249 CLR 571 at 595.

   DAVID AJ:

   Introduction

3. This is an appeal against sentence. The appellant was convicted on 7 September 2018, following a trial by Judge alone, of one count of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). The offending took place at various locations between 29 October 2010 and 14 December 2015.

4. On 5 November 2018, the appellant was sentenced to a term of imprisonment of 11 years.  A non-parole period of seven years was fixed.  The sentence was backdated to commence on 7 September 2018.

5. The appellant now appeals against the severity of his sentence.  There is one ground of appeal, namely, that the sentence is manifestly excessive. 

6. The appellant argues that the sentencing Judge did not give appropriate consideration or discount for the significance of his low intellectual functioning, his deprived upbringing and his physical ailments.

   The offending

7. The facts upon which the appellant was sentenced are set out in the sentencing Judge’s reasons for verdict dated 7 September 2018.  There is no dispute before this Court as to those findings.  In short, I set out the facts upon which the Judge sentenced:

   1.The complainant was a female born on 29 September 2007.

   2.The appellant was a friend of her family.  He and his wife were close friends with the complainant’s grandmother and had been so for 20 years.

   3.From the date of the complainant’s birth in 2007 until 2015, the appellant and his family regularly saw the complainant.  Contact would occur at the complainant’s family home at Enfield, at the complainant’s grandmother’s home at Wallaroo, at the appellant’s home at Salisbury North (where the appellant lived with his wife and three children), and at a caravan park at Maslin Beach.

   4.On occasions, the complainant would stay with her grandmother at the appellant’s house.  She would sleep in a built-on bedroom at the rear of the house, but sometimes would sleep in the main bedroom with the appellant and his wife.

   5.The proved acts of sexual exploitation all took place at that address.  They were:

   (a)     Acts of gross indecency by intentionally showing the complainant pornographic movies on more than one occasion.  When everyone in the house was asleep, the appellant would sometimes wake the complainant up and take her to the lounge room where he would show her adult pornography with the sound on the television turned down.

   (b)    Indecently assaulting the complainant by taking a hold of her hand and causing her to rub his penis on more than one occasion.  The complainant’s accepted evidence was that sometimes, when the appellant played the pornographic material, he would pull down the complainant’s underwear and take off his pants and underwear.  He would then grab her wrist and cause her to rub his penis.  The complainant gave evidence that this occurred on two occasions.

   (c)    Acts of unlawful sexual intercourse with the complainant by penetrating her vagina with his finger were proved to have taken place on more than one occasion.  The evidence of the complainant was that, when watching pornography, the appellant would pull down her pants, lay on top of her and place his penis in her vagina.  However, the sentencing Judge, in his reasons for verdict, was not satisfied of penile penetration but made a finding that the appellant digitally penetrated the vagina of the complainant.  This happened on three occasions.  During those acts, the appellant would tell the complainant not to tell anyone or he would do it harder and he would place his hand over her mouth if she cried.

   (d)    Unlawful sexual intercourse took place with the appellant penetrating the complainant’s anus with his finger on more than one occasion.  These acts took place while the complainant was being shown adult pornography and sometimes while she was in the appellant’s bed.

   (e)    The appellant indecently assaulted the complainant by touching or rubbing the outside of her vagina on more than one occasion with his hands.

8. The sentencing Judge was satisfied that the relevant acts of sexual exploitation were committed over a period of three years, commencing when the complainant was about four years of age and continuing until at least sometime before September 2014, when she was almost seven years of age. 

9. The abuse ceased when the complainant threatened to tell her grandmother and the appellant’s wife when she was seven or eight years of age.  On 14 December 2015, she complained to her mother about the sexual abuse and the appellant was arrested on 19 December 2015.  He pleaded not guilty at his trial and denied any sexual offending against the complainant and further denied showing her pornography.

   Personal circumstances of the appellant

10. The appellant was born on 4 July 1968, being 50 years of age at the date of sentencing.  He has no relevant criminal history.  He has had the same partner for 20 years.  He and his partner have three children.  Because of his physical disabilities, his partner has, to a certain extent, acted as his carer.  His personal history, setting aside his physical and mental disabilities (which I will come to), can best be described as wretched.  He is estranged from both of his parents, who separated when he was young, and he was made a ward of the State at the age of eight.  His mother showed very little interest in him and had the bizarre habit of flicking matches at him.  On one occasion when he was very young, she did this and set him alight.  The resulting burns covered a significant part of his torso and still affect him.  He suffers from various medical conditions, namely, type 2 diabetes and benign paroxysmal positional vertigo (a disorder arising from a problem in the inner ear) which results in severe symptoms of nausea and dizziness.  As a result of the severe burns received as a child, he has limited use of his legs and left arm.  It is clear that his present physical health is very poor.

11. The appellant and his partner have three children, the eldest of whom was recently tragically killed in a motorcycle accident.  His second son, aged 19, has an intellectual disability and works at Bedford Industries.  He has issues with his temper and becomes uncontrollably violent which causes difficulty and, indeed, danger to the appellant’s partner.  The youngest son, aged 13, suffers from cerebral palsy and autism. 

12. A report was tendered to this Court from a general practitioner, Dr Anthony Todd, describing the difficulties and pain from which the appellant suffers as a result of the scar tissue from his burns.  Dr Todd also described injuries sustained by the appellant’s partner as a result of the violent episodes of the second son.  Dr Todd comments of the effect on her in the absence of a male figure while the appellant is incarcerated. 

13. It is clear that the appellant’s personal circumstances leading up to and during this offending could only be described as difficult, if not wretched.

    The appellant’s psychological profile

14. The sentencing Judge was provided with a psychological report from Dr Jack White.  In that report, Dr White described the appellant’s intellectual functioning as having the verbal abilities of an average nine-year-old and the problem-solving abilities of a six-year-old.  He described the appellant as a distant and cold person, who preferred the company of a few rather than many and lacked assertiveness.  He noted that the appellant was previously diagnosed with depression and that he was physically and emotionally abused by his mother as a child, and was sexually abused by a female welfare worker when he was under the guardianship of the State.  Dr White considered the appellant had an intellectual disability with an IQ less than 70.  He was of the opinion that, in relation to the offending, the appellant’s profile was consistent with that of a vulnerable person who found that by abusing a child he assumed a position of control, he himself having been submitted to extreme torture as a child.  Dr White considered he had limited insight and it was likely that he experienced sexual gratification by his manipulation of the child.

    Appeal

15. There is one ground of appeal, namely, that the sentence is manifestly excessive.  Mr Vadasz, counsel for the appellant, argues that the sentencing Judge erred in not having enough regard to both the appellant’s psychological profile, as explained by Dr White, and his mental condition generally.  He also argues that the sentencing Judge did not place enough emphasis on the appellant’s physical disabilities nor was sufficient weight given to the fact that his partner is at a great disadvantage during his absence because of the difficulty handling his now eldest son.

16. Mr Vadasz submits that, although the seminal decision of this Court in R v D[2] indicates that, as a general rule, for repeated acts of unlawful sexual intercourse with a child under 12 years, a starting point of 12 years’ imprisonment as a head sentence is appropriate as a general tariff, it nevertheless is not a precise one and the starting point might be higher or lower in an appropriate case.  There can be no dispute about that proposition.  Mr Vadasz, however, argues that in this case the sentence imposed by the sentencing Judge was manifestly excessive because not enough regard was given to the appellant’s mental and physical ailments and the problems facing his partner.

    [2] (1997) 69 SASR 413.

    Discussion

17. The mental condition of the defendant at the time of the offending is, of course, a relevant factor in determining sentence.  It is clear that that condition must be balanced with a whole range of factors including the gravity and nature of the offending. 

18. In this matter, those factors personal to the appellant were clearly placed before the sentencing Judge who carefully considered them.  In his sentencing remarks, the Judge acknowledged the appellant’s tragic background and his physical ailments, including the burns that the appellant received at a young age. 

19. The Judge had careful regard to the report of Dr White, setting out the appellant’s low intelligence and Dr White’s opinion that the appellant’s psychological profile is consistent with that of a vulnerable person who gained sexual gratification by manipulating and abusing a child.  The Judge also referred to Dr White’s opinion that the appellant had limited insight into his behaviour.  However, the sentencing Judge did not accept that the appellant had such limited insight because of the continued and deceitful nature of the offending.  In my view, the learned sentencing Judge was entitled to form that opinion based on the facts that he found to have been proved.  Although it is clear that the appellant’s partner will suffer great hardship and many difficulties during his absence, as set out in the report of Dr Todd, that matter was clearly raised during sentencing submissions and the Judge, in his sentencing remarks, indicated that he was clearly aware of the heavy burden on the appellant’s partner in looking after her two sons during the appellant’s incarceration.

20. The offending in this case was continual, very serious, an abuse of trust, and, in many ways, well-planned.  In my view, such behaviour clearly outweighs those matters personal to the appellant.  The sentencing Judge weighed these factors up carefully and correctly.  I find that there was no error and the sentence was within the sentencing discretion.

    Conclusion

21. I would dismiss the appeal.