R v Van Gelder No. Sccrm-02-333

R v VAN GELDER
[2003] SASC 98
Court of Criminal Appeal: Perry, Nyland and Bleby JJ

PERRY J. The appellant appealed by leave against the sentence imposed upon him following his conviction after a trial before a judge and jury in the District Court on four counts of rape. At the conclusion of the hearing of the appeal, the Court announced that it was unanimously of the view that the appeal should be dismissed. It reserved the right to publish reasons later.
The offences occurred over a period of about 14 months. The counts were representative counts, in that over much of that time the appellant committed acts of rape on an almost daily basis upon the victim, a young girl aged between 12 and 13 years.
After allowing for two months already spent in custody, the sentencing judge imposed a sentence of imprisonment for 13 years and 10 months with a non-parole period of 9 years. It is from that sentence that the appeal is brought.
The offences took place at a house near Kapunda at which the appellant lived in a de facto relationship with the victim’s mother. At the time of the commission of the first of the offences the appellant was aged 31 years.
On each of the occasions when the offences took place, the appellant entered the bedroom of the victim and forced himself upon her. The offences took the form of vaginal sexual intercourse and were frequently accompanied by indecent touching of the breasts and vagina. On all occasions the victim was restrained by force applied by the appellant.
The appellant has a history of relatively minor offending dating from 1985. It is noteworthy that in 1995 he was sentenced in the Elizabeth Magistrates Court on a charge of indecent assault, for which he received a suspended sentence of 8 months imprisonment.
The sentencing judge had the benefit of a pre-sentence report and a report prepared by a psychologist, Dr Bell.
It appears from the pre-sentence report that the appellant had an unfortunate childhood marked by sexual abuse at the hands of his step-father. Since the age of 16 years he has received a disability support pension on the grounds of intellectual disability. He has never been in regular employment, and has only ever undertaken seasonal casual work in the country.
When examined by Dr Bell, the appellant maintained his innocence. Dr Bell found that the appellant had a limited level of intellectual functioning in the mildly intellectually disabled range. He thought that the appellant might benefit from the sexual offender treatment and assessment program. However, he thought that his ongoing denial of the offending may be an impediment to his rehabilitation.
The victim furnished a victim impact statement in which she describes her fear of the appellant, and that she did not know what to do when he began assaulting her. She now gets angry quickly and has nightmares and flashbacks about what happened. Her schooling is unsettled and she is having ongoing counselling. She stated that the appellant had “uprooted my life and my family”.
The sentencing judge took as his starting point 14 years imprisonment, being a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988. He found that there were no circumstances which required a reduction of that penalty, except for a deduction of two months with reference to time spent in custody.
In the result, he imposed the head sentence of 13 years and 10 months. The sentencing judge stated that having regard to the serious nature of the offences and the context in which they were committed, and bearing in mind the poor prospects of rehabilitation, a substantial part of the head sentence ought to be spent in prison.
He went on to impose the non-parole period of 9 years.
In his grounds of appeal the appellant complains that sufficient allowance was not made “on the ground of totality”; that inadequate weight was given for the appellant’s intellectual disability and unfortunate background and upbringing; that the non-parole period failed to reflect the likelihood that the appellant would benefit from a treatment program; and that he is likely to be “at risk of harm and under restrictions necessary for his protection” while in gaol.
I will deal with each of those matters in turn.
Allowance for “totality”
During the course of his sentencing remarks, the sentencing judge referred to R v D,[1] a decision of the Court of Criminal Appeal.
[1] (1997) 69 SASR 413.
That case concerned an appeal against a sentence imposed for the offence of persistent sexual abuse of a child (s 74 of the Criminal Law Consolidation Act 1935). The victim was the appellant’s step-daughter. Sexual abuse took place over a period of two months on an almost daily basis, and took various forms ranging from indecent assault, cunnilingus, fellatio and digital penetration of the victim’s vagina. Both Doyle CJ and Bleby J were of the view that sentencing standards in cases involving sexual abuse of children should be reviewed, and that a heaver range of penalties should be applied to this class of case. In the course of his judgment, Doyle CJ said:[2]
“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). That starting point would be subject to reduction on account of a plea of guilty, co-operation with the police, genuine contrition and so on. It is impossible to be precise in these matters, and I do not wish to be taken as suggesting a precise figure. In an appropriate case the starting point might be higher or lower.
When the child in question is over 12 years of age, in my opinion the starting point in such cases should be a head sentence of about 10 years imprisonment.”
[2] Ibid 424.
Bleby J agreed with Doyle CJ.
The sentencing judge obviously viewed the decision in R v D as furnishing some guidance as to the penalty to be imposed.
It must be noted that R v D was not a case involving charges of rape. This case involves multiple counts of rape of a young girl aged, over the relevant period, between 12 and 13 years. Although I suppose that there may be particular instances of unlawful sexual intercourse which might attract a heavier penalty than some charges of rape, generally speaking, rape is a more serious offence and would ordinarily attract a heavier penalty.
This Court has observed on a number of occasions that, given the wide variety of circumstances in which the offence may be committed, it is inappropriate for the court to attempt to lay down any firm tariff or sentencing standard for the crime of rape: see the remarks of Mullighan J in R v Hitchens.[3]
[3] (1995) 184 LSJS 333 at 337.
However, in R v Major,[4] Doyle CJ observed that “for a single offence of rape, an offender might well receive a sentence of about five years imprisonment”.
[4] (1998) 70 SASR 488 at 491. See also R v Athanasiadis (1990) 159 LSJS 240 per King CJ at 245.
In the same case, Olsson J said[5] that the sentencing “tariff” applicable for rape was six to twelve years.
[5] Ibid 498.
In this case, after referring to R v D (supra), the sentencing judge said:
“There were four occasions of rape which were part of a course of conduct over a period of approximately 14 months, in respect of a girl who was aged 12 and 13 at the time of the commission of the offences.
In my view the appropriate starting point for a single sentence of imprisonment under s 18A of the Sentencing Act in respect of the four offences is 14 years. There are no circumstances which require a reduction of that penalty except for an allowance for the time spent in custody after arrest amounting to two months.”
Even taking a conservative figure of five years for each of the rapes, the aggregate undiscounted head sentence would be of the order of 20 years. It must follow that although the sentencing judge did not refer expressly to the principle of totality, he must have substantially discounted the penalty which might otherwise have been appropriate.
Furthermore, if one simply has regard to the outcome of this case in comparison with the observations which were made in R v D, given that the objective circumstances of the rapes in question in this case would appear to be more serious than the acts of unlawful sexual intercourse involved in R v D, the sentence under appeal could hardly be said to be out of line with that decision.
While it is true that the appellant was to be sentenced only for the four counts upon which he was convicted, they were representative of a long course of conduct involving the almost daily defilement of the young victim. In those circumstances, the scope for leniency is much less: see R v D (supra) per Doyle CJ:[6]
“The term [representative counts] is well known, and is to be found in a number of decisions. However, as is equally well known, the term is a convenient if somewhat inaccurate term. As applied these days it refers to the approach to which I referred when making reference to R v Reiner.[7] That is, the court sentences an offender in respect of a relatively small number of offences, but does so on the basis that those offences were not isolated offences, but part of a course of conduct involving similar behaviour. On that basis, the scope for extending leniency is reduced. The uncharged offences that are part of the course of conduct cannot be used to increase the potential maximum punishment, which maximum remains the accumulation of the maxima attracted by the charged offences. The only way in which the uncharged offences can be used is to rely upon them to refuse to extend the leniency that might be extended if the offences for which the offender is convicted were isolated offences.”
[6] Ibid 419.
[7] (1974) 8 SASR 102.
Childhood abuse of appellant and appellant’s intellectual disability
It is convenient to treat these two aspects of the matter together.
Reference was made in both the pre-sentence report and in Dr Bell’s report to the fact that when the appellant was a child he was sexually abused by his step-father. As to this, Dr Bell states:
“Mr Van Gelder told me that from the age of 5 until 12, his step-father anally raped him. He described this experience as painful and frightening. He told me that he had reported this to his mother, who had not believed him. This added to his distress and anger at the abuse. He stated that this man also abused three others of his siblings.
The family moved to Whyalla when Mr Van Gelder was seven and then, when he was ten, to Adelaide, settling at Ingle Farm. The mother finally believed the children’s report about the abuse when his sister also reported being abused. This was when Mr Van Gelder was twelve. He reported feeling angry that his mother had believed his sister but not him. He is unaware if there were criminal charges brought against his stepfather.”
Having explained that part of the history which he obtained from the appellant, Dr Bell does not suggest in his report that there was any causal link between the abuse suffered by the appellant and his conduct in abusing his step-daughter many years later.
It is not uncommon to receive, as part of the submissions for leniency not only with respect to sexual offences, a reference to abuse which the defendant has received as a child.
In my opinion, the correct approach to adopt in such cases is that expressed by Ormiston JA in the Court of Appeal of Victoria in R v AWF,[8] when he said:
“6Clearly evidence of this kind is relevant, certainly where there is no dispute as to the existence of the abuse and there is some expert evidence which would connect that abuse with the offender’s subsequent misbehaviour. One should be careful, however, not to assume that abuse of that kind will automatically lead to some reduction of sentence. Otherwise there might be a plethora of unfortunate experiences put forward as the basis for similar reductions. In general it is not so much the cause that is important: rather it is the consequences which flow from those earlier events. If there is evidence to link them to a condition or state of mind which is a proper basis for viewing the criminality of an offender as less serious and for saying that specific or general deterrence (or both) should have a smaller part to play in the overall sentencing process, then that condition will have a greater relevance and significance.”
[8] (2000) 2 VR 1 at 4.
I would add that if an offender was abused as a child, this should serve to bring home to the offender the terrible consequences this can have for the victim. That consideration might reasonably be taken as an aggravating, rather than a mitigating, circumstance.
At all events, it seems to me that given that there was no evidence either in Dr Bell’s report or otherwise before the sentencing judge to the effect that the sexual abuse suffered by the appellant while a child had an effect on him which could help to explain why he later abused his step-daughter, little if any weight could be given to this aspect of the matter.
Insofar as Dr Bell diagnosed that the appellant had a “limited level of intellectual functioning in the mild intellectually disabled range”, this should be approached in the same way.
The principle to be adopted where there is an allegation of mental impairment or disorder is identified in the following dictum of Martin J, with whose judgment Prior and Williams JJ agreed, in R v Wiskich:[9]
“... The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. ... if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. .... In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced. (emphasis added)”
[9] (2000) 207 LSJS 431 at 457-458.
See also the remarks of Doyle CJ, with whose judgment Cox and Bollen JJ agreed, in R v Prak and Anor:[10]
“It is well established that individual deterrence and perhaps general deterrence may be less significant in the case of an offender suffering from a mental illness - R v Anderson.[11] But in my opinion the normal approach to sentencing should be taken when there is no link between the mental condition and the commission of the offence.” (emphasis added)
[10] (Unreported) 16 July 1996, judgment No S5781 at p 2.
[11] [1981] VR 155.
In Wiskich, Martin J was speaking of a “mental disorder”, and in Prak, Doyle CJ was speaking of a “mental illness”, whereas in this case the evidence establishes no more than that the appellant suffers from a “limited level of intellectual functioning”.
Be that as it may, it seems to me that with respect to both the effect upon the appellant of sexual abuse suffered by him as a child and with respect to his limited level of intellectual functioning, in the absence of proof of a link between these conditions and the commission of the offences in question, little if any weight can be placed upon those factors.
The sentencing judge’s approach to the appellant’s limited intellectual capacity finds expression in the following passage in his sentencing remarks:
“You have had limited education and the psychologist has found that your IQ indicates that you are mildly intellectually disabled.[12] It has not been suggested in the psychological report that this disability precluded you from knowing what you did or that it was wrong, nor has it been suggested that your responsibility for your actions was diminished by your intellectual disability. I therefore do not consider that your intellectual disability mitigates the seriousness of your offending.”
[12] See R v Kiltie (1974) 9 SASR 452.
Given the principles to which I have referred, the sentencing judge did not err in his treatment of this aspect of the matter.
Treatment while in custody
This ground of appeal raises two aspects of the appellant’s situation while he is in gaol serving out the sentence imposed upon him.
In the first place, it is suggested that there is a risk of harm which he might suffer at the hands of other prisoners who have hostile attitudes towards paedophiles.
In the second place, it is suggested that if the prison authorities take the step which is common in such cases of placing the appellant in protective custody, this will mean that his incarceration will be more confined and isolated, and will to that extent operate more harshly upon him than would otherwise be the case.
In R v Gooley,[13] Doyle CJ, with whom Williams J agreed, made the following observations:
“In arriving at this conclusion [as to the non-parole period] I have considered the fact that the appellant was apparently beaten quite badly by persons connected with the victim on the morning after the offence and the fact that the appellant was later twice assaulted while in custody, apparently as a result of publicity his case received, and will probably have to serve[d] his sentence in protective custody.
I do not consider that ordinarily an illegal act of other people can affect the punishment which an offender must receive. The law must do what it can to protect the appellant, as must prison authorities.
The conduct of the victim’s friends or family cannot reduce the appropriate sentence, in my opinion. To allow it to do so would be to allow private revenge or punishment to replace punishment by the State. In my opinion, tribal punishment of Aborigines is in a different category.
But I am prepared to make a small allowance despite this on the basis that the sentence which the appellant serves will be served under circumstances in which he will be at risk of harm and under special restrictions necessary to provide him with adequate protection. It is not possible to quantify with any precision the allowance which I make, but it is a small one.”
[13] (1996) 186 LSJS 33 at 35.
In R v Liddy,[14] which concerned the sentencing of a former magistrate for sexual offences committed on young boys, Williams J said:
“In my opinion a paedophile is not entitled to any reduction in sentence by reason of the attitude of other prisoners to this type of crime. However, there comes an extreme point where the hardship of protective custody made necessary by resentment amongst prisoners as to an offender’s previous occupation may properly attract some discount to lessen the impact of undeserved punishment associated with solitary confinement without normal privileges. The difficulty in the present case is that Liddy took advantage of his office to commit these infamous crimes. He must expect to suffer particular shame as a disgraced magistrate but gaol inmates with long memories cannot be allowed to settle old scores. The need for Liddy’s solitary confinement is partly attributable to the grudge which many within the prison system may be expected to bear against him as a magistrate by reason of the experiences of themselves and their friends at his hands. Therefore, I consider that the conditions which he is enduring does warrant some reduction in sentence insofar as the extraordinary need for his confinement in isolation arises from a justifiable fear of reprisals unconnected with Liddy’s crimes. The exercise of power to reduce sentence by reason of especially arduous conditions of prison service was canvassed by the Chief Justice in R v Gooley;[15] I concurred in that judgment.”
[14] (Unreported) Court of Criminal Appeal, 19 November 2002, judgment No [2002] SASC 306 at para 146.
[15] (1996) 66 SASR 380 at 382-383.

In the same case, Mullighan J made an extended reference to a number of authorities bearing on the matter. He expressed the general conclusion that there should be no reduction on account of the treatment of a defendant while in gaol if that treatment is a result of his or her own criminal conduct. He distinguished the case of “informers and others who co-operate with the police”[16] on the footing that people in that category “usually provide benefits to the community”, whereas there are no such benefits to society where the only conduct which attracts unfavourable attention while in custody is the criminal conduct of the defendant.
[16] Above n 14, para 117.
As for Gooley, Mullighan J made the following observations:[17]
“122It does not appear that the Court in Gooley had the advantage of full argument on this matter as there is no reference to authority or to the implications generally in the sentencing process of reducing a sentence because of the additional privation and burden which an offender will suffer in protective custody where the need for that type of incarceration is due to the nature of the crime which the offender has committed.
................
124It does not appear to me that Doyle CJ or Williams J intended to establish some sentencing principle about this matter in Gooley. I have expressed my view about the matter, but if I am wrong in the approach I have taken and the Court of Criminal Appeal in Gooley did accept that because unusual and harsh circumstances will be suffered by an offender whilst serving the sentence, some allowance may be made in favour of the appellant, it does not follow that such an allowance must be made in every case.”
[17] Ibid para 122 and para 124.
In Liddy, Gray J also referred to a number of authorities on the topic which led him to emphasise the distinction between those cases where the need for protective custody arises by reference to the nature of the defendant’s crime, as opposed to unrelated circumstances such as the health of the defendant.
It seems to me that the balance of authority in this Court is that very little, if any, allowance should be made in the sentencing process for the harsher conditions which an offender might suffer while in custody, simply because of the nature of the offending.
Another way of rationalising the relevant principle is that a court should not make allowance in the sentencing process for the effect of the criminal acts of others upon the defendant and the response which the prison authorities may make in such circumstances, at least where those criminal acts arise by reason of a hostile attitude by other prisoners to the nature of the crime which results in the defendant’s incarceration.
In my opinion, applying that approach, this is not a case where any allowance, or any significant allowance, was called for on that score.
The non-parole period
Mr Tremaine, who appeared for the appellant, argued, albeit faintly, that the sentencing judge should have set a lower non-parole period in order to allow the appellant to undertake the Sexual Offender Treatment and Assessment Program at an earlier stage. Dr Bell recommended that the appellant participate in that program, which is not available while he is in prison.
While no doubt it would be desirable for the appellant to have the benefit of such a program at some stage, this consideration does not support the argument for a reduction in the non-parole period fixed in this case. The non-parole period of 9 years was appropriate, having regard to the gravity of the offending, the prior offence for indecent assault, the appellant’s continued denial of the offences, and the fact that he is, overall, an unpromising candidate for rehabilitation.
He should nonetheless be encourage to undertake some such program. He will have ample opportunity to do so over the period of almost 5 years during which he will be on parole.
Conclusion
This was a serious case which involved a long course of abuse of a young girl.
There are seriously aggravating features. The appellant’s conduct was a gross abuse of the position of trust which he held as a de facto parent. His conduct has had a disastrous effect on the victim.
There is, as Mr Millsteed QC for the DPP pointed out, an absence of significant mitigating factors. The appellant pleaded not guilty and maintains his innocence. In those circumstances, there can be no allowance for contrition or remorse.
No error has been demonstrated on the part of the sentencing judge. In my opinion, the sentence which he imposed was well within a proper exercise of the sentencing discretion.
It is for these reasons that I concurred in the dismissal of the appeal.
NYLAND J. I agree with the reasons expressed by Perry J for dismissing this appeal.
BLEBY J. I agree with the reasons expressed by Perry J for dismissing this appeal. I have nothing further to add.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN THE JUDGMENT
1. (1997) 69 SASR 413.
2.    Ibid 424.
3. (1995) 184 LSJS 333 at 337.
4. (1998) 70 SASR 488 at 491. See also R v Athanasiadis (1990) 159 LSJS 240 per King CJ at 245.
5.    Ibid 498.
6.    Ibid 419.
7. (1974) 8 SASR 102.
8. (2000) 2 VR 1 at 4.
9. (2000) 207 LSJS 431 at 457-458.
10.    (Unreported) 16 July 1996, judgment No S5781 at p 2.
11. [1981] VR 155.
12.    See R v Kiltie (1974) 9 SASR 452.
13. (1996) 186 LSJS 33 at 35.
14. (Unreported) Court of Criminal Appeal, 19 November 2002, judgment No [2002] SASC 306 at para 146.
15. (1996) 66 SASR 380 at 382-383.
16.    Above n 14, para 117.
17.    Ibid para 122 and para 124.

[2003] SASC 98

28 March 2003