R v Slater - [2005] SASC 423

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SLATER
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Debelle and The Honourable Justice Besanko)
10 November 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCING
Appeal against sentence – one count indecent assault – five counts unlawful sexual intercourse by schoolmaster – two victims aged 16 and 17 years – appellant pleaded guilty – sentenced to six years’ imprisonment and non-parole period of three and a half years.
Held, allowing appeal: judge failed to follow approach to sentencing outlined in R v Major (1998) 70 SASR 488 – did not allocate notional sentence in respect of each offence – did not indicate how single sentence arrived at – factors warranting leniency – appellant re-sentenced to five and a half years’ imprisonment and non-parole period of 2 years and 9 months.
Criminal Law Consolidation Act 1935 s 56, s 49; Criminal Law (Sentencing) Act 1988 s 18A, referred to.
R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v B, RWK (2005) 91 SASR 200; R v E, AD [2005] SASC 332, considered.

R v SLATER
[2005] SASC 423
Court of Criminal Appeal: Duggan, Debelle & Besanko JJ

DUGGAN J. In my view the appeal should be allowed and the sentence set aside. I agree that the appellant should be re-sentenced in accordance with the orders proposed by Besanko J. I agree with the reasons to be delivered by Besanko J.
DEBELLE J. I agree with the substance of the reasons of Besanko J and with the orders he proposes.
BESANKO J. This is an appeal against sentence. The appellant was charged on information with one count of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (“CLCA”) and five counts of unlawful sexual intercourse by a schoolmaster contrary to s 49(5) of the CLCA. There were two victims of the offending, AM and JA. The first two counts, namely, indecent assault and unlawful sexual intercourse by a schoolmaster, involved AM, and the remaining four counts of unlawful sexual intercourse by a schoolmaster involved JA. The maximum penalty for the offence of indecent assault is imprisonment for eight years in the case of a victim aged 12 years or older. The maximum penalty for the offence of unlawful sexual intercourse by a schoolmaster is imprisonment for seven years.
The appellant pleaded guilty to the six counts in the information and a judge of the District Court imposed a head sentence of six years’ imprisonment and a non-parole period of three and a half years. The appellant appeals against that sentence. A judge of this Court has granted leave to appeal.
The circumstances of the offending
AM was born on 6 August 1986. The offending involving her occurred, in the case of count one, on 14 February 2003, and, in the case of count 2, between 14 February 2003 and 1 May 2003. AM was about sixteen and a half years old at the time of the offending.
The appellant was born on 2 March 1970 and was about 33 years old at the time of the offending.
JA was born on 4 August 1986. The four counts of unlawful sexual intercourse involving her occurred between 1 October 2003 and 13 December 2003. She was 17 years old at the time of the offending.
At the time of the offending, the appellant was a teacher at a country high school. He taught physical education. The high school had more than one campus. The middle school campus was in one country town and the senior school campus in another country town. The appellant taught at the middle school campus. AM and JA were students at the school and in 2002 both were in year 10 at the middle school campus. In 2003 they moved to the senior school campus. The offences were committed in 2003, when the appellant taught at a different campus.
The appellant became friendly with both AM and JA during a school camp in December 2002. On their way back from the camp on a bus the appellant, AM and JA engaged in conversations about personal matters, including sexual matters. The conversations were not appropriate conversations between a teacher and a student.
In relation to AM, the appellant did not teach her in 2002 or 2003. The appellant and AM communicated with each other between December 2002 and 14 February 2003. On 14 February 2003 the appellant and AM were in the appellant’s vehicle. They kissed and the appellant placed his hand under AM’s bra and on her breast and he placed her hand on the outside of his clothing on his crotch. The appellant asked AM if she was comfortable with what they were doing and she said, “No”. There was no further sexual contact on that occasion. The appellant and AM continued to communicate. In March or April 2003, AM went to the appellant’s house. She was upset because she had had an argument with her mother. The appellant comforted her and then asked her if she wanted anything to happen between them. The appellant had sexual intercourse with AM.
In relation to JA, in 2002 the appellant taught her physical education at the middle school campus to which I have previously referred. In 2003, JA moved to the senior school campus of the school. She decided to play social volleyball and she knew that there was a competition at another country town on Monday nights. The appellant started to drive her to the games. Shortly prior to her seventeenth birthday in August 2003, the appellant asked JA if she knew anyone she could set him up with. She made a suggestion the details of which I do not need to relate. About two months later, the appellant initiated conversations with JA about sex. In November 2003, the appellant took JA home from a volleyball game. He engaged in digital sexual intercourse and caused JA to perform fellatio on him in his vehicle. Some weeks later they had vaginal sexual intercourse at the appellant’s house, and a week or so later there was another act of vaginal sexual intercourse.
The approach taken by the sentencing judge
The judge said that apart from the subject offences the appellant had led a worthwhile and useful life. He had before him a number of character references, which he said indicated that the appellant was generally held in good regard. The judge said that in 2003 the appellant was suffering the effects of a breakdown in his marriage and he was depressed. There were problems with the appellant’s work at school that aggravated the depression.
The judge noted that neither victim had filed a victim impact statement. He said that he would not assume that any particular identifiable harm had been done to them, nor would he assume from the fact that victim impact statements had not been filed that no harm was done to them. He noted references in their witness statements to the distress and embarrassment caused by the offences. The judge referred to the fact that the appellant had sought treatment under the Sexual Offenders Treatment and Assessment Programme. He referred to the report of Mr Allen Fugler, who is a forensic psychologist. Mr Fugler did not diagnose any psycho-sexual illness or inadequacy, which meant that the appellant did not suffer from any sexual urge towards children or adolescents that as a matter of generality he was unable to control. The judge said that the appellant’s prospects of rehabilitation were as good as they could be for somebody in the appellant’s situation. The judge said that the two most important elements in the case were punishment of the appellant for what he had done and deterrence for others against what they might do. The judge said that he accepted that the appellant would not be able to work as a teacher again and therefore had lost steady and valuable employment. The judge accepted that the publicity given to the case must have been very painful for the appellant.
The judge said:
One approach would be simply to impose a penalty on each of the counts that you face and then to add them up. On any proper analysis of the amount to be imposed in respect of each count, that would lead to a quite disproportionate head sentence. It seems to me that I must take a broader approach than that and look at the overall criminality. I must also look at the fact that there were two separate victims. It seems to me that I should start with a head sentence in respect of each of the victims of something in the order of four to five years, but even then, they should not simply be accumulated, they should be made partly concurrent.
What I propose to do is to begin with a sentence, as one overall sentence, of eight years, which I will reduce for your plea by 25 per cent to six years. I will set a non-parole period of three and a half years.
The judge declined to suspend the sentence.
Issues on appeal
The Director of Public Prosecutions accepted that the judge had erred in his approach to sentencing in that he did not follow one or other of the approaches identified in R v Major (1998) 70 SASR 488. In other words, in imposing a single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (“CLSA”), he did not consider either the sentence that would have been imposed in respect of each offence and, as part of that process, whether the sentences imposed should be concurrent or cumulative, or go directly to the single sentence to be imposed, giving an adequate explanation as to how that single sentence was determined.
In R v Symonds ([1999] SASC 217), the Chief Justice outlined circumstances in which it will be appropriate to go directly to the single sentence to be imposed. He said (at [22]):
The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.
I note that the concept of totality has little part to play if the judge arrives at a sentence without determining the sentence that each offence will attract separately. Ordinarily one would not expect totality to require separate consideration in such circumstances (R v B, RWK (2005) 91 SASR 200 per Doyle CJ at [16]; per Vanstone J at [24]; R v E, AD ([2005] SASC 332) per Doyle CJ (with whom I agreed) at [36]).
I have set out the relevant passage in the sentencing judge’s remarks. I think the judge erred because in the end I do not think it is possible to say that he took either approach. He seems to have rejected the approach of notionally allocating a penalty for each offence and he did not indicate clearly how he arrived at a starting point of eight years for all of the offending. In my opinion, bearing in mind the fact that there were two victims, it was appropriate to notionally allocate penalties for each victim. In fact, I think it was appropriate to notionally allocate a penalty for each offence, save and except for the two counts involving JA, which occurred on the same occasion. That is the approach I will adopt.
It is necessary for this Court to re-sentence the appellant.
The appellant’s counsel pointed to a number of factors that he submitted warranted leniency in this case. I will refer to each of these factors, which I think fall into two categories. In my opinion, the first category of factors establish that the offending in this case is not within the worst category of offending for the offences for which the appellant has been convicted. In my opinion, the second category of factors establish that a more merciful approach is warranted than might otherwise be the case.
I start with the first category of factors. The victims in this case were not very young girls at the time of the offending. AM was about sixteen and a half years old and JA was seventeen years old. The appellant never taught AM and at the time of the offending the appellant was situated at a different campus. The appellant had taught JA in 2002, but was not teaching her at the time of the offending and was situated at a different campus. These matters mean that the offending does not fall into the worst category of offending for offences of this type. At the same time it must not be overlooked that the offending involved two victims.
The appellant’s counsel submitted that in this case there was not the aggravating feature of grooming. It is true that there was not the degree of grooming that is present in a number of other cases that come before the courts. However, I do not think that it can be said that there was no element of grooming in this case. The inappropriate and sexually suggestive conversations on the bus coming back from the school camp, the telephone and text messages and the rides to the volleyball are all matters suggesting a degree of grooming. Furthermore, there was a considerable build-up to the offending in each case and certainly sufficient time for the appellant to reflect on his conduct and appreciate that it was wrong. In addition, it must not be overlooked that in the case of AM, the victim was clearly upset as a result of arguing with her mother immediately before the second offence.
The appellant’s counsel pointed to the fact that neither victim had made a victim impact statement and that in the case of JA she said in one of her witness statements that what had occurred did not really bother her. However, I think it can be inferred from JA’s witness statements that she was upset by what occurred. I note that in one of her witness statements AM does describe how upset she was as a result of what occurred. I think the judge took the correct approach to the absence of victim impact statements. He took account of what they said in their witness statements and said that it could not be assumed that no harm was done to them. He took into account the fact that they would be distressed and embarrassed by what had occurred.
I turn now to the factors which I think justify a more merciful approach to sentencing than might otherwise be the case.
The appellant has no record of sexual offending. In fact, but for one offence when he was 16 years of age for which no conviction was recorded, the appellant has no record of offending. He has attended a Sexual Offenders Treatment and Assessment Programme and Mr Fugler expresses the opinion that he does not have a primary sexual arousal pattern to children or adolescents and that, provided he receives appropriate treatment, he should have a good prognosis. A number of character references were put before the sentencing judge and he accepted that the appellant was generally held in high regard.
The appellant will not work as a teacher again and as a result of his offending he has lost steady and remunerative employment. The appellant’s offending received adverse publicity and he has and must feel a good deal of shame for what has occurred.
In my opinion, it is unlikely the appellant will offend again.
Having regard to the matters which I have identified, I think an appropriate sentence for the offending is a term of imprisonment of 5 years and 6 months. This is the term I have reached after reducing a term of 7 years and 3 months by reason of the appellant’s pleas of guilty. I have calculated the period of 7 years and 3 months by notionally allocating 9 months for the offence of indecent assault involving AM, 18 months for the offence of unlawful sexual intercourse by a schoolmaster involving AM, 2 years for the two counts of unlawful sexual intercourse by a schoolmaster involving JA that occurred on the same occasion and 18 months for each of the other two counts of unlawful sexual intercourse by a schoolmaster involving JA. Again having regard to the matters which I have identified, I think a non-parole period of 2 years and 9 months is appropriate.
Conclusion
I would allow the appeal and set aside the sentence imposed by the judge. I would fix one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 of a term of imprisonment of 5 years and 6 months and I would fix a non-parole period of 2 years and 9 months. The sentence is to commence from the date fixed by the judge, namely, 29 March 2005.