R v Turtur

[2012] SASCFC 132

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TURTUR

[2012] SASCFC 132

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Stanley)

5 December 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appellant pleaded guilty to two groups of charges for serious sexual offences against two children unconnected with each other - Judge sentenced appellant to 14 years imprisonment for each group of offending - total head sentence of 28 years reached - reduced to 23 years by reference to totality principle - non-parole period of 15 years fixed - whether total sentence and non-parole period manifestly excessive - whether insufficient weight given to appellant's remorse, contrition, pleas of guilty, limited intellectual capacity, hope of rehabilitation, personal circumstances and totality principle.

Held:  no error of approach by judge - remarks on sentence were careful and comprehensive - due to number of charges large area of discretion was available to the judge - length of sentence a function of the seriousness and repetitive nature of the offending - all relevant factors considered by judge - appeal dismissed.

Criminal Law (Sentencing) Act 1988 s 29D, referred to.
R v D (1997) 69 SASR 413, discussed.

R v TURTUR
[2012] SASCFC 132

Court of Criminal Appeal:  Kourakis CJ, Vanstone and Stanley JJ

1. KOURAKIS CJ:   I agree with the reasons of Vanstone J.  I would dismiss the appeal.

2. VANSTONE J:     The appellant pleaded guilty to two groups of charges for serious sexual offences against two children unconnected with each other.  The first victim (V1) was a relative of the appellant and the offending occurred in the early 1980s.  The second victim (V2) was also a relative and he committed the offences against her over the period 1988 to 1994.  The pleas of guilty to all charges were entered some months after the appellant was committed to the District Court and, appropriately, one judge dealt with the sentences for both groups of offences.

3. The judge arrived at a single head sentence of 23 years imprisonment by taking a starting point for each group of offences of 18 years, reducing it to 14 years on account of the pleas of guilty and accumulating those two sentences.  He then reduced the total of 28 years to one sentence of 23 years by reference to the totality principle.  A non-parole period of 15 years was fixed.

4. Upon appeal it is not suggested that any error of approach was made, but rather that the total is manifestly excessive and that insufficient weight must have been given to certain factors, namely the appellant’s remorse and contrition as indicated by the pleas of guilty, the appellant’s limited intellectual capacity, the hope of rehabilitation, the personal circumstances of the appellant and the principle of totality.  An important part of the argument centred on the fact that, assuming the appellant serves the entirety of the non-parole period, he will be aged 79 years at the date of his release on parole.

   Background

5. The crimes were without question of the most serious kind.  Those against V1 were represented by nine counts of unlawful sexual intercourse with a person under the age of 12 and one of indecent assault, which offences began when V1 was seven years of age.  The offending continued on a weekly basis over the next four years, mainly occurring when the rest of the family visited the grave of a close relative of the appellant’s then wife.  The intercourse consisted of penile penetration and there was at least one instance of fellatio.  Naturally the victim found the offences painful and frightening.  The appellant secured V1’s silence by telling her that he would hurt her parents and that she would get into trouble if she revealed the appellant’s activities.  Later, the threats extended to the appellant killing V1’s parents if she implicated him.  Details of the offending set out by the sentencing judge in his remarks reveal the extent of the appellant’s depravity.  There is no need to descend to those details at this point.

6. V1 told her mother of the appellant’s activities in 1986, shortly after the last occasion of offending against her.  That led to the appellant being confronted by her parents and the appellant begging forgiveness and pleading with them not to report him to the police.  They complied with that request.  Later the appellant’s wife left him and they were eventually divorced.

7. The appellant remarried after about two years.  His second wife had a relative, V2, who was then about 11 years of age.  In relation to that child the appellant pleaded guilty to persistent sexual exploitation of a child and three counts of unlawful sexual intercourse.  The sentencing judge accepted that, in relation to V2, sexual abuse occurred about three or four times a week.  The sexual abuse was rough and painful.  It continued over a period of about six years and ceased when V2 was 17 years old.  She was not aware of the reason for it stopping.  The judge referred to the horrific consequences for both victims, as well as for their families.

8. The offences of unlawful sexual intercourse with a person under 12 years and persistent sexual abuse carry maximum terms of imprisonment of life.  The other offences carry maxima of seven to ten years imprisonment.

9. At the time of sentence the appellant was 64 years of age.  His background was rehearsed in the reports of a psychologist, Ms Morrell.  Ms Morrell also assessed his intellectual functioning, which she described as “significantly sub average”, with an IQ of about 70.  The appellant worked in partnership with his brother in a successful fruit and vegetable business and later went on to work in other similar businesses, retiring in about 2011.  He is a self-funded retiree.

10. The appellant told the psychologist that although he could not recall some of the “specific details” of the allegations made by each victim he did not contest their accounts of his conduct and did not wish to subject them to further pain and suffering by going to trial.

    Arguments on appeal

11. The notice of appeal contained a single ground, being a complaint that the sentence was manifestly excessive.

12. In support of that ground the appellant’s counsel pointed first to a number of factors which he contended must have been afforded too little weight by the judge. While acknowledging s 29D of the Criminal Law (Sentencing) Act 1988 – which applied the sentencing standards set in R v D (1997) 69 SASR 413 to offences involving paedophilia irrespective of the time of their commission – he submitted that, had the offending been dealt with many years earlier and before the decision in R v D, then it was likely that a lesser sentence would have been imposed.  He put that the credit to be given for pleas of guilty should, in the case of historical sexual offences, be more than the usual allowance, in recognition of the difficulties in prosecuting such matters and to encourage pleas of guilty.  He pointed out that the appellant had pleaded guilty within six months of his first arraignment in the District Court and before a trial date was set.  The pleas had been entered despite the appellant claiming not to recall some of the specific details of the offending, showing, counsel submitted, genuine contrition and a wish to spare the victims from giving evidence.  He pointed to letters expressing his remorse written to each victim by the appellant.

13. Counsel submitted that insufficient weight was given to the appellant’s limited intellectual functioning.  He pointed to the psychologist’s assessment of the appellant’s functioning as answering the criteria for “mild mental retardation” or “mild intellectual disability”.  Counsel submitted that this meant that the need for general deterrence was minimised.

14. Next counsel pointed to the likely age of the appellant at the time of expiration of his non-parole period, which, on my calculation would be 79 years and five months.  Relying on tables in Luntz, Harold, Assessment of Damages for Personal Injury and Death (4^th ed, Butterworths, 2002), counsel put that it was statistically unlikely that the appellant would live much beyond his release date.  He suggested that this was a matter which the sentencing judge should have expressly addressed.

15. Next the appellant’s counsel submitted that the sentencing judge must have given insufficient emphasis to the totality principle, since the sentence, after reduction by reference to totality, remained manifestly excessive.

16. Finally, the appellant argued that the sentencing judge’s reference to features of the victim impact statements gave rise to the perception that those statements “overwhelmed the sentencing process”.

    Analysis

17. There can be no doubt that the sentence imposed in this case was a long one and it is not surprising that the appellant, at the age of 65 years, should find his future to be bleak.  However, even the quite spare account of the offending which I set out earlier indicates the extent of, and seriousness, of the two sets of offences.  The remarks on sentence made by the judge were careful and comprehensive.  As earlier noted, no specific error is claimed.  Because of the number and seriousness of the offences, the range into which the final sentence might fall was a wide one.  A large area of discretion was available to the judge.  In these circumstances the task facing the appellant’s counsel was unenviable.

18. I remain unpersuaded that the sentence is manifestly excessive.  Its length is a function of the seriousness and the repetitive nature of the offending, which occupied a decade of the appellant’s life.  That the appellant is faced with the sentence in his mid 60s is a function of the fact that he succeeded in persuading V1’s family not to report him many years ago, on promise of reform.

19. I address some of the specific arguments.  In my view there was no particular reason in this case to give greater credit for the pleas of guilty than offences of a different nature might have attracted.  The case in relation to V1 was particularly strong, the appellant having made admissions many years earlier.  The two sets of offending were probably cross-admissible.  The pleas were entered well after arraignment.  The allowance of about 22 per cent reduction was generous.

20. The fact that the appellant had apparently not offended since the early 1990s indicated the promise of rehabilitation.  The psychologist adjudged the appellant as being at the “lower end of the recidivism scale”.  Nonetheless, the issues of protection of the public and rehabilitation were matters to be weighed – along with all other considerations – by the judge.  The possibility of the appellant dying in prison is no doubt a real one.  But it did not mandate a lesser sentence.  As was pointed out in the course of argument, sometimes the inevitable result of a just sentence is that an offender will spend the rest of his life in gaol.

21. The appellant’s level of intellectual functioning was a relevant feature of the case.  However, there was no suggestion that his awareness of the wrongfulness of his actions or his culpability was thereby reduced.  The offences themselves demonstrate a degree of planning, cunning and manipulation.

22. Finally, the victim impact statements were indeed intense and harrowing.  That was unsurprising in view of the years of abuse endured by each young child.

    Conclusion

23. For the foregoing reasons I conclude that the appeal must be dismissed.

24. STANLEY J:        I would dismiss the appeal.  I agree with the reasons of Vanstone J.