R v T, SA

[2014] SASCFC 93

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v T, SA

[2014] SASCFC 93

Judgment of The Court of Criminal Appeal (ex tempore)

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Blue)

22 August 2014

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - GENERAL PRINCIPLES

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE

The respondent pleaded guilty to the offence of persistent sexual exploitation of his own child and was sentenced to a period of two years and 10 months, with a non-parole period of one year and five months.

Held by Kourakis CJ (Kelly and Blue JJ agreeing) granting permission to review the sentence imposed and allowing the appeal:

The sentence is an egregious departure from the standard established by this Court in R v D. As to the sentence overall, the consideration of both the protection of children and general deterrence must predominate (Kourakis CJ at [12]).

A head sentence of nine years and two months with a non-parole period of five years and six months is imposed (Kourakis CJ at [15]).

Criminal Law Consolidation Act 1935 (SA) s 50, referred to.
R v D (1997) 69 SASR 413; R v MJJ; R v CJN (2013) 117 SASR 81, applied.

WORDS AND PHRASES CONSIDERED/DEFINED

"General deterrence"

R v T, SA
[2014] SASCFC 93

Court of Criminal Appeal:  Kourakis CJ, Kelly and Blue JJ

1. KOURAKIS CJ (ex tempore):      The respondent pleaded guilty in the District Court to the offence of persistent sexual exploitation committed between July 2011 and July 2013.  The sentencing judge imposed a sentence of two years 10 months, with a non-parole period of one year, five months.

2. The sentence is an egregious departure from the standard established by this Court in R v D.[1]  The standard established in that case, and confirmed by subsequent authority, is, plainly enough, not strictly prescriptive and there may be, in the appropriate case, some departure from it.  However, it should be understood that it is a standard established by considered decisions of this Court and that any departure from it should only occur where there is reason to do so in the circumstances of the particular case.  There was plainly no reason to do so in this case.  If it appears to a sentencing judge that there is some reason to depart markedly from that standard, counsel should be given an opportunity to make submissions on the question.

   [1] (1997) 69 SASR 413.

3. The respondent does not contest that permission to review the sentence should not be given.  Accordingly, I would give permission because the sentence imposed by the sentencing judge is so low, and an egregious departure from the standard set in R v D,[2] that it could only have been the product of fundamental error.  It is necessary to grant permission and allow the appeal in order to maintain the sentencing standards for this offence.

   [2] (1997) 69 SASR 413.

4. The respondent is the biological father of the victim, who was the younger of his four children.  The maximum penalty for the offence of persistent sexual exploitation is imprisonment for life.[3]  The offending was committed when V was aged between 11 and 13 years.  The offending included rubbing her breasts, causing her to masturbate the respondent, removing her clothing and digitally penetrating her.

   [3]    Criminal Law Consolidation Act 1935 (SA), s 50(1).

5. The offending only came to an end when V told a friend by writing the accusations on to a piece of paper, following which the police were informed.

6. The conduct or the offending in this case is not as invasive as in some other cases that come before the court, but that does not mean that the conduct, as a whole, was not as destructive of V’s psyche as it is in those other cases.  That unfortunate fact is well demonstrated by the opening sentences of the victim impact statement.  Writing of how she felt, V said:

   I feel hurt and betrayed, I thought he loved me.  Everyone keeps telling me that it’s not my fault but I don’t believe anyone, because it’s my fault, I told the police.  My mum would [have] been happy with dad if I didn’t say anything.  Everyone would be happy.  That’s why I feel like it’s my fault.  Every day I keep thinking why, why did this happen to me?  What did I do to deserve this?  I feel horrible.  I can’t look at myself the same.  Every time I do I see a fat ugly, girl who has been touched by her own father.  I feel like I’m a wasted space to everyone.

7. The respondent initially declined to answer questions of police but ultimately pleaded guilty in the Magistrates Court.  As a result he is entitled to a discount of up to 30% of the sentence to be imposed.  The early plea and the other indications of contrition, most importantly to the victim and her family, all militate towards giving close to the maximum discount in this particular case.

8. The respondent is 47 years of age.  He himself was sexually assaulted during his teen years.  The respondent had difficulties at school, both because he struggled academically and because he was constantly bullied and friendless.

9. Even though the respondent left school at age 15, he has had stable employment.  The respondent worked as a forklift driver for 16 years and then from 2007 worked full-time as a local transport driver.

10. The respondent has been assessed by a psychologist, Mr Balfour.  Mr Balfour provided a forensic report which was seen by the sentencing judge.  Mr Balfour reported that the respondent exhibited few of the traditional static and dynamic criminogenic risk factors.  Mr Balfour suspected the respondent suffered either a specific learning difficulty or a borderline intellectual disability, but no formal testing has been conducted.

11. Mr Balfour diagnosed that the respondent suffered a major depressive disorder with suicidal ideation.  He noted in his report that the respondent was receiving psychological treatment for the major depressive disorder which was reactive to the circumstances in which he found himself, in particular, the charges that he faced.

12. On grounds that appear to be sound, Mr Balfour’s opinion is that with the assistance of a structured rehabilitation program the respondent’s prognosis to cease offending is fair to good.  That prognosis can be more fully reflected in the non-parole period, however as to the sentencing overall, the considerations of the protection of children, and for that reason general deterrence, must predominate.

13. I repeat here the passages from the judgment of former Chief Justice Doyle in R v D:[4]

    …They are offences that cause a feeling of outrage and revulsion in the community.  The penalty must reflect that feeling.  They involve a serious breach of trust.  As this case makes clear, such offences cause serious harm to the victim in many cases.  There is every likelihood that the effects of that harm will be prolonged, and perhaps lifelong.  The courts must do what they can to protect children from such conduct.  Deterrence is an important part of sentencing for an offence such as this.  Although reasons for the offending vary, and sometimes the offenders are persons who were themselves sexually abused as children, it seems clear that such offenders are not usually persons who are unable to control their sexual instincts.  While acknowledging that the punishment of offenders is only one factor that may limit the incidence of this offence, the courts must proceed on the basis that punishment has a part to play in deterring offenders.

    Offences such as the present one have an insidious effect upon the community, and that is also something to consider.  They lead, and I suspect are already leading, to a loss of trust in the very persons upon whom we often rely for the nurture of children, for their education, and for guidance, leadership and instruction for children.  As our society becomes more aware of the extent to which children are subjected to sexual abuse, this insidious effect is increasing.

    It appears that the sexual abuse of children by persons in a position of trust is quite widespread…the offences that are involved come before the courts with disturbing frequency.  It is for those reasons that I consider that the court should increase, to a moderate degree, the level of penalty imposed for such offences.

    …

    In my opinion offences involving unlawful sexual intercourse with children under 12 years of age, when there are multiple offences committed over a period of time, should attract as a starting point a head sentence of about 12 years imprisonment.  In saying that I refer to a sentence imposed under s 74(7) of the Act and to a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA)…

    When the child in question is over 12 years of age, in my opinion that starting point in such cases should be a head sentence of about 10 years imprisonment.

    [4] (1997) 69 SASR 413 at 423-424.

14. I referred to the impacts upon the community in R v MJJ, R v CJN:[5]

    There is no doubt that victims of sexual abuse and their families carry a substantial psychological and financial burden.  There is also a great social cost to the community.  Community anxiety about sexual offending curtails the freedom of children to explore their environment in a way which is a necessary part of their psycho-social development.  It also generates increasing suspicion and sensitivity about completely innocent behaviours.  The great personal and social harm caused by sexual offending against children demands a strongly deterrent sentencing response.

    [5] (2013) 117 SASR 81 at [84].

15. In this case I would commence with a starting point of 13 years.  I would reduce that on account of the respondent’s plea of guilty, to a head sentence of nine years, two months.  I would fix a non-parole period of five years, six months.  The sentence is to commence from the day on which the respondent was taken into custody, 27 June 2014, when he was sentenced in the District Court.

16. KELLY J:     I agree with the reasons of the Chief Justice and the orders he proposes.

17. BLUE J:       I agree.