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.

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v VANCE

Details

AGLC: R v VANCE [2015] SASCFC 122
Case: [2015] SASCFC 122
Decision Date: 26 August 2015

CaseChat Overview and Summary

In R v Vance, the applicant sought leave to appeal against a sentence of five years imprisonment with a non-parole period of three years, imposed for indecently assaulting three young girls. The applicant, a music teacher aged 76 at the time of sentencing, committed the offences over a period of approximately five years between 2003 and 2008, during private lessons. The victims were aged between five and ten years old at the time of the offending.

The central legal issues before the court were whether the head sentence and non-parole period were manifestly excessive, and the appropriate weight to be given to various sentencing factors. These factors included the nature and circumstances of the offences, specifically the breach of trust inherent in the applicant's position as a teacher, the gravity of sexual offending against children, the impact on the victims as evidenced by victim impact statements, and the applicant's personal circumstances such as his age, lack of prior convictions, and medical issues. The court also considered the purpose of sentencing, particularly the need for general deterrence in cases of sexual offences against children.

The court acknowledged the sentencing judge's finding that the offending, while not involving penetration or touching under clothing, was still serious due to its damaging effects on the young victims and the significant period over which it occurred. The judge also recognised the importance of general deterrence and the need to protect children. While the applicant's age, lack of prior convictions, and a psychological report suggesting a low risk of re-offending were considered, the sentencing judge found these factors were diminished by the applicant's continued assertion of innocence and lack of insight into his offending. The court ultimately found that the sentencing judge had properly balanced all relevant considerations, including the gravity of the offences, the breach of trust, the impact on the victims, and the need for general deterrence, against the applicant's personal circumstances.

The application for leave to appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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 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 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. 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. 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. 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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: GRAY J, KELLY J

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