R v T, N - [2008] SASC 1

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v T, N
[2008] SASC 1
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice Vanstone)
15 January 2008
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 REFUSED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Appeal against sentence - whether sentence imposed was manifestly excessive - whether trial Judge erred in declining to suspend.
Held: appellant failed to demonstrate error in approach of trial Judge - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 56; Criminal Law (Sentencing) Act 1988 (SA) s 10(4), referred to.
DPP (SA) v O'Connor (1995) 65 SASR 250, applied.
R v Lobban (2001) 80 SASR 550; R v C (2004) 89 SASR 270; R v Smith (2007) 97 SASR 302, considered.

R v T, N
[2008] SASC 1
Court of Criminal Appeal: Doyle CJ, Sulan and Vanstone JJ

DOYLE CJ: Mr T appeals against a sentence imposed by the District Court. A Judge of this Court granted him leave to appeal.
After a trial before the District Court Judge sitting without a jury, Mr T was convicted on two counts of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”).
In each case the victim was the same child. Under s 56 of the CLCA as it stood at the time of the offences, because the victim was under the age of 12 years, the maximum punishment for each offence was imprisonment for a term not exceeding 10 years. The Judge sentenced Mr T to a single sentence of imprisonment for three years, and fixed a non-parole period of 18 months. The Judge declined to suspend the sentence. On appeal, counsel for Mr T submits that the sentence is excessive, and that the Judge erred in failing to suspend the sentence.
Mr T was released on bail pending the appeal after serving approximately six weeks of the sentence.
The offences
Mr T stood trial on one charge of indecent assault and one count of unlawful sexual intercourse. He did not dispute the conduct that gave rise to count 1, the charge of indecent assault. The issue at trial was whether it occurred in circumstances of indecency. The Judge decided that it did.
As to count 2, the charge of unlawful sexual intercourse, Mr T admitted the facts except that he denied that he penetrated V’s vagina. He pleaded guilty to indecent assault in answer to count 2, but that plea was not accepted by the Director of Public Prosecutions. The Judge found Mr T not guilty of unlawful sexual intercourse, but convicted him of indecent assault.
The victim in each case was Mr T’s step-granddaughter. I will refer to her as “V”.
Count 1 occurred in late 1992, when V was eight years or nine years old. Mr T was then about 53 years old. Mr T was minding V. His wife was away from the house. The Judge found that Mr T kissed V on the breast, on top of a nightgown that she was wearing. The Judge described it as a lingering and sensual kiss.
Count 2 occurred in January 1994. On this occasion Mr T was again minding V. His wife was interstate. Mr T put his hand inside the overalls that V was wearing, and inside her underpants, and rubbed his hand across her vagina. V was then 10 years of age.
The Judge also found that between 1992 and 1994, on a number of occasions, Mr T touched or handled V in an “inappropriate” manner, indicating a pattern of grooming of V. Mr T’s offences cannot be regarded as isolated acts.
When the Judge sentenced Mr T he was 67 years of age. V was then 23 years of age.
When count 1 was committed Mr T was an emeritus minister in what was described in one of the references as a “small Christian denomination”. He had been a full time minister for about 20 years, but due to health problems had retired from the full time ministry. He was not being paid a stipend, and performed a limited range of duties. Mr T had no previous convictions for offences of any kind. He was married with three adult children.
The day after the incident the subject of count 1, V complained to her mother and stepfather. They confronted Mr T, although the details of this are not clear. It appears that he admitted what he had done, although he probably minimised its significance. He apologised for his conduct.
His admission and apology must have been accepted, because Mr T continued to have regular contact with V. As I understand it, the inappropriate conduct to which the Judge referred continued between 1992 and 1994.
V complained promptly after the second incident. This time the matter was reported to the police, but Mr T was not prosecuted at the time.
On this occasion Mr T admitted his wrong doing to his family, to other Ministers of the Church, and to the congregation. He retired from the ministry altogether. A letter from a Minister of the Church states that Mr T “sought pardon from a group of his family and friends, the Council, and publicly the Church”.
A reference put before the Judge from two members of the congregation of the Church confirms that his admission to the congregation was a public one. An exhibit before the Judge suggests that this occurred in December 1995.
Mr T voluntarily enrolled in a program for sexual offenders in May 1994. However, this was because family members and members of his Church put some pressure on him to do so. The program is the Sexual Offenders Treatment and Assessment Program (“SOTAP”).
The Judge had available to him a report from Dr Louis, the current director of SOTAP and a qualified psychologist. She had access to the SOTAP records.
Her report of 28 August 2007 is to the effect that while involved in SOTAP Mr T had tended to minimise the seriousness of his conduct, and seemed to lack insight into the effect of his crimes on V. He was involved in the program from May 1994 until August 1995. Mr T terminated his involvement in SOTAP in August 1995, contrary to advice that he should continue. He gave as his reason a need to care for his wife, whom he said was suffering from chronic fatigue syndrome. When he ceased involvement in SOTAP, a report was written which was to the effect that although his participation had “generally been satisfactory”, his finishing with the program was considered to be “premature”, and the view was expressed that he had not properly completed the program.
Dr Louis interviewed Mr T in August 2007, for the purposes of preparing a report. Dr Louis said that there was a low risk of Mr T reoffending. However, she said that Mr T was “still ambivalent about accepting responsibility for his offending”. She said that “his awareness of victim impact issues is poor, somewhat self focussed and excusatory”. She thought that he did not show a “satisfactory acceptance of responsibility for his offending”.
I gather that from about 1996 onwards Mr T resumed a normal life, although no longer part of the ministry of the Church. I gather, as I have already indicated, that he has continued to work as a volunteer, contributing to the community in a variety of ways.
Mr T is now estranged from two of his sons and their families. He maintains contact with his youngest son. Mr T suffers from various physical and mental health problems, and is vulnerable to stress, according to a character reference from a psychiatrist who has been treating Mrs T and who appears to know Mr T well.
Mrs T was diagnosed as having non-Hodgkin’s lymphoma in 2004. She is in poor health. She relies heavily on Mr T for support. She cannot manage on her own. Mr T’s imprisonment will have a significant adverse effect on Mrs T.
A victim impact statement from V makes it plain that she still suffers significant adverse effects from the offences that Mr T committed. She lives with the consequences of his crimes, and with their effects on her. She struggled with these consequences during her younger years. It is clear that the offences have had a real effect on her.
These were serious crimes, with lasting effects on V. The second offence is a particularly serious breach of trust, because it occurred after the first offence was exposed, and after Mr T had apologised for his misconduct. Despite that he was trusted by his family, but he betrayed that trust. Such conduct by a minister of religion is particularly shocking.
The sentence
The sentencing Judge referred to the matters that I have outlined above. He acknowledged Mr T’s previous good character, and said that entitled him to some leniency. The Judge considered a substantial body of written material, including expert reports and supportive character references.
He gave Mr T credit for having participated in SOTAP, but noted that Mr T lacked insight into the consequences of his conduct, and noted his failure to complete the program.
The Judge rightly referred to the importance of individual and general deterrence. It should not be overlooked that s 10(4) of the Criminal Law (Sentencing) Act 1988 (SA) requires that “paramount consideration” be given to the need for deterrence in cases such as this one.
The Judge said that Mr T was entitled to “full discount” for his plea of guilty offered on count 2. The Judge also acknowledged that Mr T was entitled to a reduction in his sentence because he admitted the facts of count 1, contesting only the circumstance of indecency. He noted Mr T’s cooperation with the Church authorities and the prosecuting authorities.
The Judge reduced the sentence by 25 per cent, commenting that the reduction might have been as much as 30 per cent had he been satisfied that Mr T was wholly remorseful and wholly contrite.
The Judge referred to the poor health of Mr T and that of his wife. However, in relation to Mr T he referred to a comment from the psychiatrist who provided a character reference, to the effect that imprisonment would have “a major detrimental impact on his physical and mental health”. The Judge said that he was unable to make any finding to that effect, because of a lack of detail. He said that Mrs T would be able to get help from other family members, and non-family members. He said that Mr T’s offending conduct could not be treated as “a momentary aberration”, bearing in mind the circumstances of count 2 in particular.
As I said earlier, the Judge imposed a sentence of imprisonment for three years, and fixed a non-parole period of 18 months. He said that the low non‑parole period reflected the low risk of Mr T reoffending.
The Judge considered in some detail whether or not the sentence should be suspended. He was not persuaded that “good reason” to suspend the sentence existed. He took into account all of the matters to which I have referred.
Submissions on appeal
On appeal, Mr Algie for Mr T submits that Mr T has done all he reasonably could to rehabilitate himself, and to show contrition and remorse. Mr Algie referred to his acknowledgement of his wrongdoing, his undertaking of SOTAP, his public acknowledgement of wrongdoing to the congregation of his Church, his relinquishing of his positions in the Church, his offer to plead guilty and the fact that he did not dispute the facts of the indecent assaults, and the fact that he had committed no further offences. He submits that the Judge failed to give proper weight to these matters, as a result of the Judge paying undue attention to the fact that Mr T could have done better in the course of the SOTAP than he did.
These are all matters that the Judge referred to. The submission focussed on a comment made by the Judge that although there was a low risk of reoffending, this was “not withstanding the poor progress made, in other respects, towards achieving rehabilitation”. I am satisfied that that comment refers to the report of Dr Louis, which was to the effect that there was a low risk of reoffending, even though Mr T’s involvement in SOTAP was not completely satisfactory. This comment by the Judge reflects the facts before the Judge. It does not indicate that the Judge made an error. Nor, of itself, does it indicate that the Judge failed to give due weight to the mitigating circumstances.
Nor did the Judge err in saying that Mr T’s conduct could not be regarded as a “momentary aberration”. I agree with the Judge. To make this point was in no way inconsistent with the Judge’s acknowledgement that there was a low risk of re-offending. The comment correctly identifies an aspect of the offences that made them more serious.
Mr Algie also submits that the Judge should have reduced Mr T’s sentence by 30 per cent, rather than by 25 per cent, on account of his remorse and contrition. The reduction to be made on this account is always a matter for the judgment of the sentencing Judge. In my opinion it cannot be said that the circumstances were such that it was an error to do what the Judge did. As it happens, I consider that it was open to the Judge to take the view that Mr T was not wholly remorseful and contrite, having regard to the expert opinion before him about Mr T’s lack of empathy. But in any event, there is no basis upon which it can be said that the Judge erred in taking the approach that he took.
A separate complaint is made that the Judge failed to give proper weight to Mr T’s participation in SOTAP. Counsel referred in particular to the Judge’s reference to Mr T’s apparent lack of “empathy” for his victim. In my opinion this comment does not indicate any error by the Judge. It is no more than a reference to the views expressed and reported by Dr Louis.
I have referred already to the reference from Mrs T’s psychiatrist, to the effect that imprisonment would have “a major detrimental impact on his physical and mental health”. The psychiatrist did not elaborate, although she had referred to Mr T being vulnerable to stress, and having little resilience. The Judge said that he was not able to make a finding on this matter, because he had no further material before him. Arguably, as the Director did not challenge this comment, the Judge should have warned counsel for Mr T that he might not be prepared to act on that basis, without supporting detail: R v Lobban [2001] SASC 392; (2001) 80 SASR 550 at [17]-[20]. However, the reference was written about two years before the Judge heard sentencing submissions. It came from a psychiatrist who was treating Mrs T, not Mr T. It gave no supporting detail. In all the circumstances, the Judge cannot be criticised for not acting on it. I will return to this point in a moment.
Mr Algie further submits that the Judge failed to give adequate weight to the needs of Mr T’s wife. However, it cannot be said that the Judge’s comments on this point were wrong, nor can it be said that Mrs T’s state of health and her needs were such that the Judge could not take the approach that he did. As this Court has often said, it is only in exceptional circumstances that adverse effects on a dependant of an offender can be taken into account.
At the hearing of the appeal counsel tendered an affidavit from Mr T’s solicitor, exhibiting three further medical reports. To the extent that the reports relate to the state of Mrs T’s health, the tender should be rejected. They do no more than elaborate on material before the sentencing Judge. There is no basis upon which this material can be received as further evidence on appeal.
In relation to Mr T, a report from his general practitioner indicates that on 12 October 2007, the day after Mr T was sentenced, he was diagnosed as suffering from severe “aortic dissection”. The doctor states that this is a life threatening condition, and will continue to be so for the rest of his life. In my opinion that material is admissible, although it should have been put before the single Judge who heard the application for leave to appeal. It is admissible because it puts in a new light on material that was before the Judge, namely, material suggesting that Mr T’s health made him vulnerable. The almost immediate demonstration of that point could not have been anticipated: see R v C [2004] SASC 244; (2004) 89 SASR 270 at [32], where I considered and then summarised the effect of the relevant cases. However, in the end it does no more than demonstrate the potential for imprisonment to have a detrimental impact on Mr T’s health. There is nothing to indicate that Mr T’s condition cannot be managed satisfactorily in prison. The condition presents a risk to Mr T whether or not he is in custody. For these reasons, the further material put before the Court on appeal does not undermine the basis upon which the Judge sentenced him.
Even when this further material is taken into account, and when all the other relevant factors are taken into account, I am not persuaded that the sentence that the Judge imposed is excessive. These were serious offences, involving a serious breach of trust, especially after Mr T’s exposure in relation to count 1. The need for deterrence is a significant factor, and diminishes the scope for leniency on account of factors personal to Mr T: R v Smith [2007] SASC 64; (2007) 97 SASR 302 at [38]. There are reasons to doubt whether Mr T fully acknowledges the effects of his offending on V. I do not consider that the head sentence or the non-parole period can be said to be excessive. The sentence is within the appropriate range.
I turn to the question of suspension. It is a difficult question.
At 67 years of age, and in his state of health, imprisonment will be difficult for Mr T. It will have a significant adverse effect on Mrs T. I agree that the risk of reoffending is low. Apart from the offending conduct involving V, Mr T has been of good character. However, that is often the case with this kind of offending: see R v Smith (above) at [38]. Mr T has contributed to his Church and to his community. Mr T’s earlier acknowledgement of wrongdoing, both to his family and to his Church, are significant matters, even though the Judge found that Mr T had not fully accepted the impact of his offending on V, and did not fully acknowledge his responsibility.
There is no reason to think that the protection of the community requires that Mr T be imprisoned.
The matters relied on by Mr Algie, as supporting a decision to suspend the sentence, are substantial.
But to say that is to do no more than to acknowledge that there are matters upon the basis of which the Judge could have concluded that there was “good reason” to suspend the sentence. These circumstances do not of themselves lead to a conclusion that the Judge was wrong in deciding that the sentence should not be suspended.
I do not accept Mr Algie’s submission that the Judge’s remarks indicate an erroneous approach. To the contrary, the Judge balanced the factors for and against a finding that there was “good reason” to suspend the sentence. The matters that the Judge identified as militating against suspension were matters that could be so regarded. The Judge gave less weight to the effect of imprisonment on Mrs T than some might give it, but that was a matter for him to assess. The further material relating to Mr T’s health does not undermine the Judge’s approach. In short, there is no error in his approach.
Can it be said, nevertheless, that the combined weight of the circumstances demonstrates that the Judge came to the wrong conclusion? Can it be said that the circumstances required the Judge to suspend the sentence? I am not persuaded that the Judge was wrong. I acknowledge the strength of the case for suspension. But I also acknowledge the countervailing factors identified by the Judge.

I consider this to be a case in which it was open to the Judge to decide that the sentence should not be suspended.
For those reasons, I would dismiss the appeal.
SULAN J: I too would dismiss the appeal. The facts have been discussed in the reasons of the Chief Justice. I agree with the reasons of the Chief Justice in concluding that the sentence is not manifestly excessive, and that no error has been demonstrated in the reasons of the sentencing Judge.
As to the question of suspension of the sentence, I have considered the factors referred to by the Chief Justice upon which he concludes that the matters relied upon by counsel for the appellant supporting a decision to suspend the sentence are substantial. Nevertheless, the offending was very serious. V was under ten years of age when the first offence occurred, and ten years of age when the second offence was committed. The offences were committed as a part of a course of conduct. The appellant was in a position of trust. V’s family had forgiven him after the first offence came to light. The appellant breached their trust again.
A significant factor in considering whether the sentencing Judge was in error in concluding good reason did not exist to suspend the sentence is the requirement that the Court give paramount consideration to general deterrence in order to give effect to the need to protect children from sexual predators.[1]
[1] Section 10(4) of the Criminal Law (Sentencing) Act 1988.
That factor must have greater relevance if the child is very young. The victim impact statement in this case demonstrates the significant effect the offending had upon V. In her statement, V speaks of the appellant’s gross breach of trust. She says because others trusted him, she was repeatedly sent back into his care. She also speaks of the effect that T’s conduct had upon her family. The effect of T’s conduct is perhaps best summed up in V’s own words:
Whenever I spoke up about this man’s abuse he just explained his behaviour away as him simply being an “affectionate person” and I was exaggerating in search of attention. So again, because of “trust” I was repeatedly sent back into his care. This then led me to doubt my own self-worth and even feel that somehow, I must be to blame for what he was doing.
In DPP (SA) v O’Connor,[2] the respondent, who was 29 years of age and suffered psychological problems, including depression, stress and isolation, some of which was due to the long-term effects of the sexual abuse he himself had suffered as a child, pleaded guilty to indecent assault and unlawful sexual intercourse with a 13-year-old boy. The offending, which included acts of masturbation and fellatio, occurred over a period of four months. The respondent received a suspended sentence. The Director of Public Prosecutions appealed. In allowing the appeal Perry J, with whom Cox and Williams JJ agreed, said:
Circumstances of aggravation in this case are constituted by the substantial disparity in ages, the gross breach of trust, the repetitive nature of the offences and that they were committed over a period of time. In my opinion, those factors gave rise to the need to have regard to general deterrence as the dominant consideration in imposing sentence.
Matters personal to the defendant such as his prior good record and his psychological condition could not outweigh the need for punishment “proportionate to the gravity of the crime, and for the deterrence of others”.
In my view, the sentence of imprisonment was too short and its suspension not warranted. The sentence reflects a failure to give proper weight to the seriousness of the offending and the need for general deterrence.[3]
[2] (1995) 65 SASR 250.
[3] Ibid 253. (Citations omitted).
The observations in O’Connor are relevant to the conduct in this case. Clearly, there were a number of mitigating factors. Nevertheless, the seriousness of the offending and the aggravating features of it were such that I conclude no error has been demonstrated in the sentencing Judge’s approach and his determination not to suspend the sentence.
VANSTONE J: I also would dismiss this appeal. I agree with the reasons of the Chief Justice.