R v VANCE

[2015] SASCFC 122

Supreme Court of South Australia

(Court of Criminal Appeal)

R v VANCE

[2015] SASCFC 122

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Kelly and The Honourable Auxilliary Justice David)

26 August 2015

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENCE - BREACH OF TRUST

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENCE - GRAVITY OF OFFENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES

Application for permission to appeal against sentence. The applicant was convicted after a trial by Judge alone of three counts of persistent sexual exploitation of a child. All three of the victims were the applicant’s music pupils. In each case the offending consisted of indecently assaulting the child on the upper thighs and vaginal area. The applicant was sentenced to a period of imprisonment of five years, with a non-parole period of three years.

Permission to appeal against sentence was refused by a single Judge of this Court. The applicant now seeks permission to appeal on the ground that the head sentence and non-parole period imposed are manifestly excessive.

Whether the head sentence and non-parole period are manifestly excessive.

Held per Kelly J (Gray J and David AJ agreeing) (refusing permission to appeal):

1.  In determining sentence for an offence involving sexual exploitation of a child, this Court must give proper effect to the need to protect children by ensuring that paramount consideration is given to the need for general and personal deterrence.

2.  The sentencing Judge took into account all relevant considerations.

3.  The starting point of five years for the head sentence was well within the range available to the sentencing Judge. It is not reasonably arguable that the head sentence or the non-parole period of three years is manifestly excessive.

Criminal Law (Sentencing)  Act 1988 (SA) s 10(2)(c), s 10(3)(ba), s 18A; Criminal Law Consolidation Act 1935 (SA) s 50(1), referred to.
R v MJJ; R v CJN (2013) 117 SASR 81; R v D (1997) 69 SASR 413, applied.

R v VANCE
[2015] SASCFC 122

Court of Criminal Appeal:   Gray, Kelly JJ and David AJ

GRAY J.

1. I would refuse permission to appeal.  I do not wish to add to the reasons of Kelly J.

   KELLY J.

   Introduction

2. This is an application for permission to appeal against a sentence imposed in the District Court on 3 March 2015.  On 29 June 2015 a Judge of this Court granted an extension of time within which to apply for permission to appeal.  Permission to appeal against the sentence was refused. 

3. On 6 November 2014 after a trial by Judge alone the applicant was convicted of three counts of persistent sexual exploitation of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for each count of that offence is imprisonment for life.

4. The applicant was sentenced to a single period of imprisonment pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) of five years. A non-parole period of three years was imposed. He seeks permission from this Court to appeal against that sentence on the ground that the head sentence and non-parole period imposed are manifestly excessive.

   Background

5. At the time of the offending, between approximately 2003 and 2008, the applicant was a music teacher.  He taught at two primary schools in an area south of Adelaide and at his home at Christies Beach.  All three of the victims were young girls.  ID was between five and nine at the time of the offending.  The second victim SA was between six and 11 years old.  The third victim JT was between seven and 10 years old.  In each case the offending consisted of indecently assaulting the child on the upper thighs and vaginal area.  In each case the offending occurred during nearly every lesson taught.  The offending occurred over a substantial period of time during private lessons with the applicant. 

   The Judge’s Approach

6. In sentencing the applicant, the Judge had regard to the comparatively low severity of this offending:

   Many sexual offences committed against children consist of much more physically invasive conduct. As I have already said, you never touched the girls under their clothing and there was never any penetration, so, in that sense, your offending is less serious than some other sexual offending. But, even less invasive touching than we often see in the courts can still have very damaging effects on the victims, and that is the case here.

7. However he also properly noted that “[all] sexual offending against children is serious and general deterrence is of prime importance.  Children must be protected from sexual predators” and identified the lengthy period over which the offending took place.  The Judge outlined the significant and ongoing suffering that the offending caused ID, SA and JT, and also a parent of one of the victims as presented to the Court through victim impact statements.

8. The sentencing Judge had regard to the applicant’s personal circumstances, including his advanced age (he was 76 at the time of sentencing), family circumstances and support from his siblings.  The Judge also traversed the applicant’s work history, medical issues and noted the applicant’s lack of prior convictions.  His Honour considered that the applicant’s lack of convictions was “of no consequence because [he was] able to use [his] position as a trusted teacher to commit these crimes.”[1]

   [1] There was no suggestion that this remark transgressed s 10(3)(ba) of the Criminal Law (Sentencing) Act 1988 (SA) nor, in my opinion, could there be.

9. A psychological report from Mr Richard Balfour was prepared for the purpose of sentencing, in which Mr Balfour opined that the applicant was in the low range of risk of re-offending.  The sentencing Judge weighed this opinion against the necessity of stern punishment for such offences, the fact that the applicant maintains his innocence, has no insight into his offending, and asserts that the victims lied about the offending.  It was the sentencing Judge’s view that the usefulness of the psychological report was diminished by the applicant’s continued assertion of innocence.

   Discussion

10. The applicant was unrepresented upon the hearing in this Court.  His oral submissions presented to the Court were principally directed to the issue of whether the applicant was properly convicted.  Insofar as those submissions were relevant to the appeal against sentence they appear to be repetitive of submissions made on the applicant’s behalf at the earlier hearing before the single Judge on 29 June 2015.  The Court has therefore taken into account the full submissions made by Mr Heffernan on that date in support of the application. 

11. Mr Heffernan emphasised that the offending behaviour did not involve penetration and the touching was always on the outside of the victims’ clothing.  He pointed to the advanced age of the applicant, he is now 77 years old, and submitted that the broader principles expressed in cases such as R v D[2] could have been adequately addressed by a sentence of lesser duration given the applicant’s advanced years and the fact that the offending acts were inherently less intrusive and gross in nature than the sort of conduct often encompassed in charges of this kind.

    [2] (1997) 69 SASR 413.

12. Notwithstanding those submissions I consider that permission to appeal ought to be refused.

13. The sentencing Judge took into account all relevant considerations.  He was mindful of the applicant’s advanced age, the fact that the offending conduct did not involve penetration and took into account an opinion of a psychologist that the applicant’s risk of re-offending was low. 

14. Nevertheless, the offences were committed against three victims who were of very tender years.  It cannot be doubted that the offending has had a lasting and significant impact upon each of those children despite the physical nature of the indecent assaults.  The offending in each case extended over a period of three years.  The applicant was not entitled to the leniency that might have been accorded if the offending had been an isolated instance. 

15. The applicant’s medical conditions were found by the sentencing Judge to be capable of being managed by medication. In addition, as had been noted in the psychologist’s report prepared for sentencing, the applicant’s health could be adequately managed while in custody.  The fact that the applicant has twice been admitted to hospital for fainting spells since he was incarcerated supports this conclusion.  There has been nothing else put to this Court that suggests that the applicant’s health cannot be properly managed in custody. 

16. In addition, notwithstanding the optimistic opinion of the psychologist, the applicant continues to deny his guilt and has demonstrated no contrition, remorse, or insight into his behaviour, a fact which the psychologist noted:

    He has rejected the guilty verdicts.  He has continued to protest his innocence.  Due to his strident denial of his offending behaviour, I am unable to directly assess his motives for his offending behaviour.  Nevertheless, his offending behaviour was clearly motivated by sexual desire and self-gratification.  I note the numerous aggravating factors such as the young vulnerable age of the victims, and that he was in a position of authority and trust over them. 

17. In determining sentence for an offence involving sexual exploitation of a child, this Court must give proper effect to the need to protect children by ensuring that paramount consideration is given to the need for general and personal deterrence.[3]  It is well recognised that offending of this nature can, and did in this case, have a significant and ongoing impact on the lives of the victims and the community in general.[4] 

    [3]    Criminal Law (Sentencing) Act 1988 (SA) s 10(2)(c).

    [4]    R v MJJ; R v CJN (2013) 117 SASR 81 at [84].

18. An important aggravating factor in this case was the fact that the offending was committed by a person in a position of trust.

19. In the end and given all of these circumstances I consider that the starting point of five years for the head sentence was well within the range available to the sentencing Judge. 

20. The non-parole period imposed represents 60 per cent of the head sentence. In circumstances in which the assessing psychologist considers that the applicant’s offending was motivated by his sexual desire but the applicant continues to deny, and has no insight into, his offending, it cannot be said that the non-parole period is manifestly excessive. It is not reasonably arguable that the head sentence or the non-parole period of three years is manifestly excessive. 

21. For these reasons I would refuse permission to appeal.

22. DAVID AJ:           I would refuse permission to appeal.  I agree with the reasons of Kelly J.