R v Temby

R v TEMBY
[2003] SASC 230
Court of Criminal Appeal: Debelle, Gray and Sulan JJ

DEBELLE J This is an appeal against sentence.
The appellant pleaded guilty to two counts of unlawful sexual intercourse with a young woman aged 15 years. The first involved vaginal sexual intercourse and the second anal sexual intercourse. He also pleaded guilty to two counts of common assault of the same young woman. One sentence was ordered in respect of all of the offending. The appellant was sentenced to imprisonment for a period of 35 months with a non-parole period of 12 months.
There are two grounds of appeal. The first is that the judge erred in not suspending the sentence. The second is that the sentence is manifestly excessive.
The sexual misconduct is quite atypical of the usual kind of offending. The first offence occurred on 4 November 2001; the second on 27 April 2002. At the time of the first offence the appellant was aged 22 years and the complainant was aged some 15 years and 5 months.
The appellant lived and worked in a country town. He was a member of a number of local clubs including a football club. At the football club he became acquainted with the complainant’s mother. She lived with her husband, the complainant and another child in the town. From about August 2001 the complainant’s mother invited the appellant to the family home for meals. The appellant became a friend of the family. He soon began to stay overnight at the house sleeping in a separate bed in the same bedroom in which the complainant also slept. He became attracted to the complainant and she to him.
In late September a relationship between them began to develop that was noted by the complainant’s mother. The appellant initially had reservations about this developing friendship because he knew that the complainant was aged 15 years. The complainant’s mother did not discourage the friendship. The appellant and the complainant spoke to her mother about having sexual intercourse. The complainant’s mother said that she had no objection provided that sexual relations were completely consensual. The appellant and complainant embarked on a consensual sexual relationship. The first act of sexual intercourse occurred on 4 November 2001, the date of the first count. As I have said, the complainant was then aged about 15 years and 5 months.
At about that time the appellant went to live with the complainant’s family. Thereafter, the appellant and the complainant engaged in a robust relationship of sexual intercourse. According to the complainant, intercourse occurred nearly every night. Notwithstanding the declarations made by the father, it is difficult to accept that he was unaware of this conduct. He did not object to it.
The first count is representative of the repeated offences. The second count relates to one occasion when the parties engaged in consensual anal intercourse.
In February 2002, the complainant’s mother and father separated. The appellant continued to live in the household and continued the sexual relationship with the complainant until 6 May 2002. The separation of the complainant’s parents led to conflict between the complainant and her mother. The complainant took her father’s side. She confronted her mother. The appellant took the mother’s side in those arguments. The appellant in the course of these confrontations transferred his affections to the mother. After the complainant discovered the appellant and her mother in bed together on 6 May 2002, the relationship between the complainant and the appellant terminated.
The appellant continued living in the household and at the time of the sentencing was still living with the mother. The complainant went to live with her father.
The two counts of assault occurred on 1 and 2 June 2002. On the first occasion the appellant confronted the complainant about an incident which reduced the complainant to tears. In her upset state she pushed the appellant against a cupboard and ran outside. The appellant chased her, the complainant ran back into the kitchen where she stood behind her mother for protection. However, her mother walked away. The appellant then pushed the complainant who fell to the floor. He tried to pull her upright but could not do so. He then kicked her on the thigh and left the room. The complainant got to her feet. The appellant returned to the room and kicked her again on the thigh. The appellant said the kicks were not intended to hurt but were merely a form of teasing. This explanation was not accepted by the sentencing judge and there is no reason to depart from his view. However, the complainant did not suffer any physical injury apart from perhaps some minor bruising.
The incident on 2 June again resulted from the appellant upsetting the complainant with some words. The complainant told him he should leave the house and he in turn replied that she was the one who should leave. The appellant then knelt heavily on the complainant’s shoulder and hip while she was on a couch. The complainant then went next door to her father’s house and returned with a suitcase to collect some clothes. The appellant grabbed her by the neck. The complainant struggled free. The appellant caught her, pushed her to the floor and held her down. When the complainant’s mother asked him to release her, he did so, but he kicked her in the rib cage. Again the complainant did not suffer any physical injury apart from, it seems, some minor bruising.
It was apparent from the declaration of the complainant that the sexual relationship was entirely consensual. She believed she was going to marry the appellant. This was her first serious relationship. Furthermore, the sexual intercourse occurred with the express consent of the complainant’s mother.
As I have said, after the complainant’s parents had separated in February 2002, the relationship continued until May 2002. By then the complainant’s mother had induced the appellant to transfer his affections to her. Plainly the separation of her parents and the fact that the appellant had switched his affections to her mother caused a great deal of emotional distress to the complainant. She missed the last term of her schooling in 2002 and could not complete her year 11 examinations. She has been prescribed antidepressants. She feels betrayed by her mother as well as by the appellant. There has been a total breakdown of the relationships within the complainant’s family.
Prior to this offending the appellant had had a good character. His former teacher at primary school speaks well of his capacities and his reputation. While at school he would rise early to work at a neighbour’s farm and would return to that work after school. He took on responsibilities at an early age. He is a good sportsman and plays for a football club in the town in which he lives. He has coached a junior indoor bowls club. He has one prior appearance before the court when no conviction was recorded. It is not relevant to this offending. Since leaving school he has been in employment. At the time of this offending he was employed artificially inseminating dairy cattle.
The sentencing judge clearly took a very grave view of the appellant’s conduct. He believed that others should be deterred by the prospect of severe punishment even if they succumbed to sexual offending of this kind as a result of actual encouragement. He could only have been referring to the active encouragement of the complainant’s mother and the fact that no objection was raised by the father. The judge was asked to suspend the sentence but refused to do so. He said:
“The unlawful sexual intercourse offences in particular were serious, knowingly and deliberately committed in a sexual relationship with an impressionable young person of whose apparent infatuation with you you took advantage for as long as you held your interest in her.”
He was, however, prepared to order a shorter non-parole period than what otherwise would be appropriate because of the appellant’s good character.
For the reasons which follow, I do not agree with the judge’s assessment of the appellant’s conduct.
The sentencing judge also remarked that persons of the complainant’s age are to be protected from the consequences of their emerging sexuality so that adults do not take advantage of them. As a general proposition this is undoubtedly true. However, it ignores the particular and unusual circumstances of this case.
The purpose of the law prohibiting unlawful sexual intercourse is the protection of young women from the advances of men, older men in particular, and to protect them from their own immature inclinations. It is necessary for the courts to impose penalties which vindicate that law and deter older men from taking advantage of the sexual inclinations of young girls. See R v Williams (1990) 53 SASR 253 at 254 and R v Halse (1997) 70 SASR 456 at 458. When that purpose is identified, it is quite apparent that the offending in this case stands outside the normal course. Although the appellant was some six or seven years older than the complainant he had not simply taken advantage of her. He and the complainant had discussed the question whether they should engage in sexual intercourse with the complainant’s mother and obtained her consent. This was not an occasion of a single act of intercourse perhaps following an episode of drinking, nor was it a breach of trust. It was not the case of an older man simply taking advantage of a younger woman. While the complainant’s mother may be open to criticism for granting her consent, any fault on her part should not be visited upon the appellant.
The sentencing judge was critical of the appellant for transferring his affection to the complainant’s mother. The appellant must expect to be criticised for that. His conduct might indicate emotional immaturity and a lack of proper concern for the complainant’s feelings. It might also indicate emotional weakness. There is inadequate evidence of the reasons why he transferred his affection, but it is reasonable to infer that the complainant’s mother played a not insignificant part in that. However, whilst the appellant might be subject to criticism, any impact of his conduct upon the complainant’s feelings is an irrelevant factor. It is commonplace that those who engage in sexual relations with one person may very often terminate the relationship and take up with another. That is not a crime. The only crime is a person taking advantage of a younger woman under the age of 17 years.
This conduct is so far removed from the usual kind of offending that questions of general and personal deterrence do not have the significance they might otherwise have. In this respect it is convenient to refer to the observations of Perry J in G v Police (1999) 74 SASR 165 at 170 where His Honour said:
“General deterrence must, of course, always play its part. But there will be cases where the question of deterrence will yield to personal factors or other matters which might amount to a good reason to suspend.”
In my view, the head sentence for the crimes of unlawful sexual intercourse was manifestly excessive. It fails to have regard to the particular circumstances of this case. Before dealing with the question of the appropriate penalty, I turn to the assaults and to the question of suspension.
So far as the two assaults are concerned, the appellant’s conduct was plainly reprehensible but it was not so serious as to warrant a sentence of imprisonment, even for the second assault. The complainant suffered no physical injury other than perhaps some minor bruising. In other circumstances a fine or some other penalty short of imprisonment would have sufficed.
I turn to the question whether the period of imprisonment should have been suspended. In my view, the exercise of the discretion clearly miscarried. It is sufficient to refer to the exceptional circumstances of this case and to the other factors I have mentioned. In addition, the appellant is of good character. Furthermore, it is apparent that the sentencing judge has misapplied the principles relating to a suspended sentence. In his remarks, when considering whether he should suspend the sentence, he referred to “the relative leniency of a suspended sentence”. That is to misstate the position. A suspended sentence is a very real form of punishment. In this respect it is sufficient to refer to the well-known remarks of Bray CJ in Elliot v Harris (No 2) (1976) 13 SASR 516 at 527. It is unnecessary to repeat them. They are well-established and have been consistently applied by this Court ever since.
The circumstances in which a suspended sentence will be ordered were noted by Walters J in Wood v Samuels (1974) 8 SASR 465 at 468.
“Speaking for myself, I would think that a suspended sentence is imposed only when by eliminating all other alternatives, the court thinks the case is one for imprisonment, and, though it be a case for imprisonment, an immediate custodial sentence is not required in the circumstances of the particular case. In my view, a suspended sentence is aimed primarily at the offender whom it is not appropriate to send to prison for the first time and who is most likely to benefit from an exercise of the court's clemency.
Admittedly there are no comprehensive specific criteria which tell a court when a case is one fit for a suspended sentence. But the perceived seriousness and the intrinsic character of the particular offence, and any element of persistence, can serve as important restraints on the choice of a suspended sentence. On the other hand, the likelihood that further criminal behaviour cannot reasonably be assumed is a matter which may well bring the offender within the scheme of the legislative policy which enables the rigours of a custodial sentence to be avoided.”
In my view, the sentencing judge failed to have due regard to the unusual circumstances of this case when considering whether to suspend the sentence. He failed to have regard to the fact that the young man before him was a person of whom it could be said that he was unlikely to offend again. In addition, he gave undue emphasis to the question of deterrence, at the expense of rehabilitation. In my view, he has also failed to have regard to the rationale underlying a suspended sentence. The nature of this offending, coupled with the good character of the accused, pointed to the conclusion that the sentence should have been suspended.
In the ordinary course, the court first determines the appropriate sentence and then considers the question of suspension. In this case, the sentencing discretion has so miscarried that it has been necessary to consider both the severity of the sentence and the question of suspension before determining what orders should be made on this appeal.
The sentence of imprisonment was ordered on 26 March 2003. The appellant has, therefore, served 17 weeks and one day of the sentence.
I turn to the question of what penalty should be imposed. In my view, it is appropriate, in all the circumstances of this case, to order one sentence in respect of all four offences. By reason of the quite unusual nature of this offending and for all of the above reasons, a sentence of six months imprisonment is an appropriate penalty. Having regard to the appellant’s pleas of guilty, I would reduce the head sentence to a period of 17 weeks and one day. The sentence is unusual, by reason of the particular circumstances of the appeal and by reason of the fact that it is appropriate to adopt a merciful approach in all the circumstances of this case. The offending in this case was so atypical, that a very light sentence is all that is required.
For these reasons, I would allow the appeal. I would set aside the sentence ordered on 26 March 2003 and, in lieu thereof, I would sentence the appellant to a period of imprisonment of 17 weeks and one day.
GRAY J I agree.
SULAN J I agree.
DEBELLE J Mr Temby, the effect of the reasons of the court is that you are now able to be released and you may return home today.

[2003] SASC 230

24 July 2003