R v Storr - [2009] SASC 128

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Permission to Appeal)
R v STORR
[2009] SASC 128
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice David)
21 May 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Respondent pleaded guilty to nine offences, including unlawful sexual intercourse and aggravated indecent assault against two minors - sentenced to imprisonment for 2 years with 1 year non-parole - Director of Public Prosecutions sought permission to appeal against sentence - whether sentence is manifestly inadequate - whether appeal is brought to establish some matter of principle - whether sentence was disproportionate to the seriousness of the crimes so as to shock the public conscience.
Held: Sentence not manifestly inadequate - sentence was in the range available to the sentencing judge - no error of law or fact by sentencing judge - appeal does not raise a matter of principle - sentence would not shake public confidence in the administration of justice - permission to appeal refused.
Criminal Law (Sentencing) Act 1988 s 18A, referred to.
Everett & Phillips v The Queen (1994) 181 CLR 295; Dinsdale v The Queen (2002) 202 CLR 321; R v Osenkowski (1982) 30 SASR 212; R v Wilton (1981) 28 SASR 362; R v Nemer (2003) 87 SASR 168, considered.

R v STORR
[2009] SASC 128
Court of Criminal Appeal: Vanstone, Anderson and David JJ

VANSTONE J. In my view permission to appeal should be refused. I agree with the reasons of Anderson J.
ANDERSON J.
Introduction
The respondent, Mr Storr, pleaded guilty to nine offences contained in two separate Informations and was sentenced in the District Court on 3 February 2009. The Director of Public Prosecutions seeks permission to appeal against the sentence on the basis that the sentence imposed was manifestly inadequate. The offences on the two separate Informations were committed against two victims who I shall refer to as M and T.
The guilty pleas in relation to T were in respect of three counts of unlawful sexual intercourse when the victim was aged 15 years between 1 May 2004 and 1 December 2004 and on 19 December 2004 and 22 December 2004.
The second Information involved counts of making a communication for a prurient purpose with the intention of making a child amenable to a sexual activity between 21 May 2007 and 28 July 2007, one count of aggravated indecent assault when M was aged 13 years on 18 May 2007, and four counts of indecent assault when M was aged 14 years on 23 May 2007, 25 May 2007 and 26 May 2007.
The maximum penalties for the relevant offences are:
1.unlawful sexual intercourse – imprisonment for 7 years;
2.making a communication for a prurient purpose – imprisonment for 10 years;
3.aggravated indecent assault – imprisonment for 10 years;
4.indecent assault – imprisonment for 8 years.
The sentencing judge imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988. His Honour fixed a head sentence of two years with a non-parole period of one year. The head sentence was fixed after a deduction for the pleas of guilty.
Background
The background facts are set out in sufficient detail in the remarks of the sentencing judge. The judge was presented with a summary from the prosecution. Some parts of the declarations had been removed because they referred to incidents that were no longer being alleged.
Victim T
Put briefly, you came to know the victim at school. She was in Year 7. You were in Year 12 and five years older than she was. Your initial contact was through dancing classes and, later, when your sister was involved with her in theatrical work.
After leaving school, you went to Adelaide for a short time to study but you returned to Whyalla at the end of 2003. You had then been in a relationship with a person who was a few years older than this victim.
You and the victim were then involved in the same theatrical productions and over time you gave her an increasing amount of attention. In 2004, you initiated physical contact and that developed over a period of time. It was maintained secretly and eventually it led to the offending. The first count occurred in Whyalla in mid to late November 2004. The second two counts took place at the Police Academy at Fort Largs. You were then training to be a police officer. I will say more about that later.
At the time of that offending you were 20 years old.
Victim M
By the time of the offending in 2007, you were a serving police officer. Again you met that victim through the local theatre group, again you initiated a relationship, first through casual contact and then through computer and text messages. In time that led to secret meetings, during the course of which, on 18 May 2007, you sexually assaulted her. She was then 13 years of age and about to turn 14 and, in fact, the subsequent offending occurred soon after she became 14 and at various places in the vicinity of and in Whyalla.
It is evident from all the materials that you initiated that contact. In some of it you photographed her wearing your police uniform and you once handcuffed her. You encouraged the relationship and her conduct by the sexual tone of the numerous computer messages you exchanged with her and upon which one of the counts is based.
Your offending with her was aggravated by a number of factors. In the first place, you were either then training to be a policeman or had attained that status, and it is one which gained you a level of power and influence; secondly, your victim was very young at the time and you well knew that; thirdly, because you blithely ignored her mother’s attempts to intervene in the relationship. The mother contacted you on 29 May and told you to cease contact with her daughter, but you did not. Further, on 25 July police began investigating the relationship and on 10 August you were told by your superior to cease all contact with the victim. You flagrantly disobeyed that direction.
At the time of that offending you were 23 years old.
I have read the victim impact statements tendered. As to the victim [T], your involvement caused her feelings of shame, vulnerability and, indeed, a fear of any contact with you. The shame has affected her relationships with those close to her.
As to the victim [M], it is evident that even after your offending came to light she sought to protect you, believing your relationship was a serious one. She suffered from feelings of distress, guilt, self-blame and isolation, and your conduct affected her progress at school. She suffered embarrassment in having to deal with other people over what had happened.
I have taken into some account, too, her mother’s victim impact statement, which generally corroborates what her daughter says.
The sentence
The sentencing judge said at page 5 of his remarks:
I have considered everything that has been put. I regard your offending here as very serious, indeed, because it was calculated, you well knew the ages of your victims, you well knew how wrong it was and, in the case of the first victim, your conduct extended over a period of time. You abused, in a significant way, your age and the position of responsibility you held in the community. Indeed, in some respects your behaviour seems to have flouted and been contemptuous of your role as a cadet or police officer. It is plain that you sought out those relationships and took advantage of the ages and immaturity of the victims.
You will receive credit for your pleas of guilty. But for them and in the particular circumstances of this case, I would have fixed an overall sentence, reflecting the matters submitted and including totality, of two years and nine months imprisonment. On account of your pleas and taking some account of your home detention conditions, that sentence is reduced to two years.
Despite everything that has been put, I am not persuaded that there is good reason to suspend that sentence. Your offending was calculated, predatory and flouted your obvious appreciation of the law.
I will, however, take account of those mitigating factors mentioned by your counsel; in particular, the steps you have taken towards rehabilitation in terms of the support of a stable relationship, psychological counselling and undertaking employment. They will be reflected in a non-parole period that will be considerably lower than might ordinarily have been fixed. It will be one year.
The head sentence and the non-parole period will commence from today.
Permission to appeal
Mr Illingworth for the Director of Public Prosecutions submitted that the penalty was manifestly inadequate and that the court should interfere in order to maintain adequate standards of punishment. Mr Illingworth relied on the comments in Everett & Phillips v The Queen (1994) 181 CLR 295 at 300 and Dinsdale v The Queen (2002) 202 CLR 321 at [3]-[6]. The principles from those decisions are well known. The headnote in Everett encapsulates the principles, namely, that leave should be given to the Crown to appeal against sentence only where the appeal is brought to establish some matter of principle, which must be understood as encompassing what is necessary to avoid manifest inadequacy or inconsistency in sentencing standards.
It was submitted that in this matter the sentence was “so disproportionate to the seriousness of the crimes as to shock the public conscience”: R v Osenkowski (1982) 30 SASR 212 at 213. Mr Illingworth submitted that there were a number of aggravating factors which the court should take into account. These included a breach of trust, given that the respondent was a police cadet during some of the offending and a serving police officer at other times. Further, the respondent was warned by M’s mother to cease communication with her and he was also warned by his direct superior in the police force but failed to heed either warning.
Mr Illingworth submitted that the respondent’s offending was not isolated but was part of a course of conduct. He submitted that this conduct was in the nature of grooming and was predatory. He also pointed to the disparity of age – in M’s case she was 13 and the respondent was 23, whereas in T’s case she was 15 and the respondent was 20.
Finally, Mr Illingworth submitted that the unlawful activities only ceased upon the respondent’s apprehension.
Mr Stokes, for the respondent, referred to the comments of King CJ in R v Wilton (1981) 28 SASR 362 at 363. His Honour there deals with the relevant principles for Crown appeals. There is no dispute as to the principles. Mr Stokes conceded that the non-parole period could be described as merciful. He emphasised the youth of the respondent and his contrition and remorse expressed publicly and privately to the victims and their families. He submitted that these offences were a result of the immaturity of the respondent and that the respondent was not a predator in the normal sense of that word. Mr Stokes also emphasised the favourable factors in the psychological report which were taken into account by the judge.
Conclusion
The learned sentencing judge indicated that he commenced his sentencing consideration with a starting point of 2 years and 9 months imprisonment. He then reduced that to 2 years on account of the guilty pleas and by taking some account of the time spent on home detention. He declined to suspend the sentence.
It is clear that the sentencing judge did take account of mitigating factors in fixing his penalty, namely, steps taken by the respondent towards rehabilitation and the fact that he was now in a stable relationship. He further pointed to psychological counselling and his new employment and his Honour indicated that those factors would be taken into account when he fixed what he described as a non-parole period which was “considerably lower” than might ordinarily have been fixed. Mr Illingworth conceded that the judge properly took all these matters into account.
In this matter there is no suggestion of any error of fact or law made by the sentencing judge. It is my view that the sentence of imprisonment was properly within the range available to the sentencing judge both in relation to the head sentence and the non-parole period. It is my view that the sentence imposed is not one which would “shake public confidence in the administration of justice”: R v Nemer (2003) 87 SASR 168 per Doyle CJ at 172. I do not consider this application raises any matter of principle.
For these reasons I would not grant permission to appeal.
DAVID J. I agree that permission to appeal should be refused for the reasons given by Anderson J.