R v Warsap - [2011] SASCFC 129

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WARSAP
[2011] SASCFC 129
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
11 November 2011
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - GENERALLY
Appeal against sentence - where defendant pleaded guilty to the offence of persistent sexual exploitation of a child - following application by Director of Public Prosecutions, District Court Judge remanded the defendant to the Supreme Court - Supreme Court Judge conducted an enquiry pursuant to section 23 of the Criminal Law (Sentencing) Act 1988 (SA) as to whether the defendant was incapable of controlling his sexual instincts - the Judge determined not to make an order pursuant to section 23 - where the Judge then proceeded to sentence the defendant; a sentence of 13 years imprisonment was imposed and a non-parole period of nine years was fixed - where complained on appeal that, as the Judge had declined to make a section 23 order, the Judge lacked jurisdiction to sentence the defendant, and in the alternative, that if the Judge acted within jurisdiction, the matter should have been remitted to the District Court Judge for sentencing.
Discussion regarding the interpretation of section 23(6) of the Act.
Held: Appeal dismissed - the Supreme Court has jurisdiction to sentence notwithstanding that in a particular case the Court declines to make a section 23 order - section 23(6) does not exclude a jurisdiction to remit or sentence - on a proper interpretation, the powers of the Supreme Court under section 23(6) are not to be read to be limited - the circumstances provide a clear basis for the proceeding, as a matter of discretion, to have remained in the Supreme Court for the purposes of sentencing.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Alternative contention that sentence imposed was manifestly excessive - complained on appeal that Judge should not have proceeded to sentence on basis that victim had been subjected to anal intercourse - complained that Judge failed to weigh in the defendant's favour, the defendant's offer to apologise to victim - further complained that Judge's description of the cross-examination of the victim as "prolonged and rather aggressive" was unwarranted, and that in all the circumstances, having regard also to the decision in R v D, the sentence imposed was manifestly excessive.
Held: Appeal dismissed - the Judge's findings were open to her - the Judge's conclusions with respect to the apology and her description of the cross-examination, were justified - no error identified.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Law (Sentencing) Act 1988 (SA) s 23, referred to.
R v Warsap (2010) 106 SASR 264; R v Wichen (2005) 92 SASR 528; R v Scobie (2003) 85 SASR 77; Veen v The Queen (1979) 143 CLR 458; R v England (2004) 87 SASR 411; R v Harris [1961] VR 236; R v Stehbens (1976) 14 SASR 240; R v Martin (2007) 99 SASR 213; Cheung v The Queen (2001) 209 CLR 1; R v Warsap [2011] SASC 73; R v D (1997) 69 SASR 413; PNJ v The Queen (2009) 193 A Crim R 54; Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404; Knight v FP Special Assets Ltd (1992) 174 CLR 178, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"deal with"

R v WARSAP
[2011] SASCFC 129
Court of Criminal Appeal: Gray, Sulan and David JJ
GRAY J:

This is an appeal against sentence. Questions as to jurisdiction are raised.
On 11 September 2009, Peter Robert Warsap was convicted by jury verdict following a trial in the District Court of the offence of persistent sexual exploitation of child contrary to section 50(1) of the Criminal Law Consolidation Act 1935 (SA).[1] His appeal against conviction was dismissed on 26 February 2010.[2]
[1] 50—Persistent sexual exploitation of a child
(1) An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
[2] R v Warsap (2010) 106 SASR 264.
On 17 June 2010, following an application by the Director of Public Prosecutions, the District Court trial Judge remanded the defendant to the Supreme Court pursuant to section 23(2) of the Criminal Law (Sentencing) Act 1988 (SA). On 5 April 2011, Vanstone J conducted an enquiry pursuant to section 23(3) and at the same time heard sentencing submissions. On 29 April 2011, Vanstone J declined to make an order of indeterminate detention. Counsel did not seek to make any further sentencing submissions and the Judge immediately proceeded to sentence the defendant to a term of imprisonment of 13 years. A non-parole period of nine years was fixed.
On the hearing of the appeal it was submitted that Vanstone J lacked jurisdiction to sentence the defendant. In the alternative it was submitted that if the Judge acted within jurisdiction, the matter should have been remitted to the District Court trial Judge to sentence the defendant. In the further alternative it was submitted that the sentence imposed was manifestly excessive.
Jurisdiction
Section 23 of the Sentencing Act provides:
(1)     In this section—
…
person to whom this section applies means—
(a)     a person convicted by the Supreme Court of a relevant offence; or
(b)     a person remanded by the District Court or the Magistrates Court under subsection (2) to be dealt with by the Supreme Court under this section; or
(c)     a person who is the subject of an application by the Attorney-General under subsection (2a);
relevant offence means—
(a) an offence under section 48, 48A, 49, 50, 56, 58, 59, 63, 63A, 63B, 69 or 72 of the Criminal Law Consolidation Act 1935;
(b) an offence under section 23 of the Summary Offences Act 1953;
(ba)   an offence against a corresponding previous enactment substantially similar to an offence referred to in either of the preceding paragraphs;
(c)     any other offence where the evidence indicates that the defendant may be incapable of controlling, or unwilling to control, his or her sexual instincts;
unwilling—a person to whom this section applies will be regarded as unwilling to control sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts.
(2)If, in proceedings before the District Court or Magistrates Court, a person is convicted of a relevant offence and—
(a)     the court is of the opinion that the defendant should be dealt with under this section; or
(b)     the prosecutor applies to have the defendant dealt with under this section,
the court will, instead of sentencing the defendant itself, remand the convicted person, in custody or on bail, to appear before the Supreme Court to be dealt with under this section.
(2a)If a person has been convicted of a relevant offence, the Attorney-General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section.
(2b)The Attorney-General may make an application under subsection (2a) in respect of a person serving a sentence of imprisonment whether or not an application to the Supreme Court to have the person dealt with under this section has previously been made (but, if a previous application has been made, a further application cannot be made more than 12 months before the person is eligible to apply for release on parole).
(3)The Supreme Court will direct at least 2 legally qualified medical practitioners nominated by the Court to inquire into the mental condition of a person to whom this section applies and report to the Court on whether the person is incapable of controlling, or unwilling to control, his or her sexual instincts.
(4)     For the purpose of an inquiry under subsection (3), each medical practitioner—
(a)     must carry out an independent personal examination of the person; and
(b)     may have access to any evidence before the court by which the person was convicted; and
(c)     may obtain the assistance of a psychologist, social worker, community corrections officer or any other person.
(5)The Court may order that a person to whom this section applies be detained in custody until further order if—
(a)     the Court, after considering the medical practitioners' reports and any relevant evidence or representations that the person may desire to put to the Court, is satisfied that the order is appropriate; or
(b)     the person refuses to cooperate with an inquiry or examination under this section and the Court, after considering any relevant evidence and representations that the person may desire to put to the Court, is satisfied that the order is appropriate.
(6)If a person to whom this section applies has not been sentenced for a relevant offence, the Supreme Court will deal with the question of sentence at the same time as it deals with the question whether an order is to be made under this section and, if the Court decides to make such an order, the order may be made in addition to, or instead of, a sentence of imprisonment.
(7)If the detention is in addition to a sentence of imprisonment, the detention will commence on the expiration of the term of imprisonment, or of all terms of imprisonment that the person is liable to serve.
…
[Emphasis added.][3]
[3]    See R v Wichen (2005) 92 SASR 528, [30]-[49] for a general discussion of this section prior to the most recent amendments.
Section 23 of the Sentencing Act provides a statutory regime for dealing with offenders found to be incapable of controlling their sexual instincts. Section 23(3) provides this Court with the power to order at least two qualified medical practitioners to inquire into a defendant’s mental condition and report to the Court as to whether the defendant is incapable of controlling or unwilling to control his or her sexual instincts. Section 23(4) provides that such an inquiry must be independent and may be assisted by a psychologist or a corrections officer or some other such person. Having received such reports, section 23(5) allows this Court to order that the defendant be detained in custody until further order, if satisfied that the order in appropriate. Section 23 provides for ongoing review of persons subject to a section 23(5) order, and further provides for the Court, on application, to discharge the order for detention, provided that certain conditions are fulfilled. In Wichen, I had occasion to consider the scheme of section 23, and made the following observations:[4]
Section 23(5) of the Act has been described as facilitating a form of “preventive detention” and constitutes an exception to the general common law principle of proportionality in sentencing.[5] The principal rationale behind section 23 is to provide protection to the community from those offenders who are unable to control their sexual instincts.[6] In addition, indeterminate sentences may provide an avenue for a sexual offender’s mental condition to be regularly reviewed and treated to prevent a continuing danger to the community.[7]
[4]    R v Wichen (2005) 92 SASR 528, [34].
[5]    For example see R v Scobie (2003) 85 SASR 77, [10].
[6]    R v England (2004) 87 SASR 411; R v Scobie (2003) 85 SASR 77.
[7]    Veen v The Queen (1979) 143 CLR 458.
On the hearing of the appeal, no complaint was made about the order of the District Court trial Judge remanding the defendant to appear before the Supreme Court. It was accepted that the District Court trial Judge had acted in accordance with the terms of section 23 following the application of the Director.
Counsel for the defendant drew attention to the words “dealt with” appearing in sections 23(1)(b), 23(2)(a) and 23(2)(b), and the use of the words “will deal with” and “as it deals with” in section 23(6). It was contended that the above phrases did not provide that the Supreme Court must sentence the person remanded. It was said that the consequence of the use of these phrases, in the event that the Court declined to make a section 23 order, was that Vanstone J was obliged to remit the matter to the District Court trial Judge for sentencing. Counsel supported this construction by referring to the long standing practice, supported, it was said, by authority that trial Judges should sentence a defendant following a trial. Attention was drawn to the following observations of the Court of Criminal Appeal in Victoria in Harris:[8]
…The responsibility of awarding punishment once a jury have convicted a prisoner lies solely upon the judge. He has to form his own view of the facts and to decide how serious the crime is that has been committed, and how severely or how leniently he should deal with the offender. The learned judge in forming his view of the facts must not, of course, form a view which conflicts with the verdict of the jury, but so long as he keeps within those limits, it is for him and him alone to form his judgment of the facts. If the jury have made any recommendation he must give to it such weight as he thinks proper (see per Isaacs J, Whittaker v R (1928), 41 CLR 230, at p 240…and R v Tappy and Davis, [1960] VR 137). He has presided at the trial and he has seen the witnesses and has seen how the trial has progressed, and he can form his own judgment of the seriousness or other character of the offence….
[8] R v Harris [1961] VR 236, 236.
This decision has been followed in this State in Stehbens[9] and Martin.[10] More recently in the High Court in Cheung, referring to a decision of the Court of Criminal Appeal of New South Wales, Gleeson CJ, Gummow and Hayne JJ noted:[11]
[9]    R v Stehbens (1976) 14 SASR 240, 245 (Hogarth, Wells and Sangster JJ).
[10] R v Martin (2007) 99 SASR 213, 231 (Gray, Sulan and David JJ agreeing).
[11] Cheung v The Queen (2001) 209 CLR 1.
In Isaacs the Court of Criminal Appeal summarised certain well-established principles concerning the law and practice of sentencing in New South Wales as follows (omitting references to authority):
"1.     Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury ...
2.     Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings ...
3.     The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury ...
4.     A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.
5.     There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender ... However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender ... "
[Footnote omitted.]
These authorities set out well settled principles. None of these judicial observations however address questions of jurisdiction or consider a statutory regime such as that created by section 23. In the ordinary course, it may be accepted that a trial Judge should sentence a defendant following conviction.
In the present proceeding, the Director adopted a fundamentally different approach. The Director went so far as to submit that section 23(6) should be read to invest exclusive jurisdiction in the Supreme Court and that the section did not empower the Supreme Court Judge to remit the matter to the District Court. During the course of oral submissions, the Director accepted that such an interpretation could have unfortunate consequences. In particular, it was accepted that circumstances could arise where a trial Judge would be in a much better position to sentence a defendant having heard the evidence in the trial. This would be of particular importance where the trial Judge had to make findings relevant to sentencing that were not addressed directly by the jury’s verdict.
In my view there is no substance to the defendant’s attack on the jurisdiction of the Judge. To my mind, the use of the phrases “to be dealt with”, “will deal with” and “as it deals with” are of wide import. The phrases intend to invest a wide jurisdiction in the Supreme Court to address the making of an order under section 23 and the sentencing of a defendant. I see no reason to read the provisions so as to exclude the jurisdiction of the Court to sentence when the Court declines to make a section 23 order.
The competing constructions advanced by the parties require words to be read into section 23(6). I am not prepared as a matter of statutory construction to read words into the section. As noted above, it is my view that the three phrases referred to, and in particular the concept of the Court “dealing” with a matter, are not to be given a restricted meaning. There is power to sentence and there is power to remit. There is no restriction on the jurisdiction of the Court. A review of the history of the section and in particular the second reading speeches does not disclose any suggestion that the powers of the Court were to be limited. In this respect, the observations of the High Court in Owners of Shin Kobe Maru v Empire Shipping Co Inc are apposite:[12]
…[I]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words…..
More recently, the High Court in PNJ endorsed these comments citing a long line of High Court authority to a similar effect.[13]
[12] Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404, 421 (the Court).
[13] PNJ v the Queen (2009) 193 A Crim R 54, [19] (The Court), citing also Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472, [47] (McHugh ACJ, Hayne and Heydon JJ) and Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486, [10].
The rationale for this approach to interpretation is addressed in the following observations of Gaudron J in Knight v FP Special Assets Ltd:[14]
It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant. Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.
[Footnote omitted.]
[14] Knight v FP Special Assets Ltd (1992) 174 CLR 178, 205 citing Hyman v Rose [1912] AC 623, 631; FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, 290.

In the result, I reject the respective contentions of the parties suggesting a limitation on the powers of the Supreme Court. In my view, the Supreme Court has jurisdiction to sentence notwithstanding that in a particular case the Court declines to make a section 23 order. The Court however, retains a discretion to remit. In the ordinary course it may be expected that the Supreme Court would “deal with” the defendant. Having determined not to make a section 23 order, the Court would proceed to sentence the defendant. Unusual circumstances however may dictate an exercise of the discretion to remit.
A Remittal as a Matter of Discretion
As mentioned, Vanstone J refused the Director’s application for an order under section 23 that the defendant be detained in custody until further order. Vanstone J reviewed the psychiatric evidence:[15]
[15] R v Warsap [2011] SASC 73, [3].
All three psychiatrists had access not only to the trial material, but also to documents relevant to the prisoner’s history. The opinions of Dr Raeside and Dr Brereton are similar. Each is of the view that, while the prisoner has capacity to control his sexual instincts, he is “unwilling” to do so, as that term is defined in the Sentencing Act. Dr Brereton said:
Given all the factors I have outlined above, I have concluded that there is a significant risk that, if Mr Warsap were to find himself alone with a male child and had the opportunity to sexually offend against this child, he would fail to exercise the appropriate control of his sexual instincts.
Dr Raeside put the matter this way:
Finally, I would support Dr Brereton’s opinion that currently Mr Warsap is ‘unwilling’ to control his sexual instincts as defined by the Act. I understand that ‘unwilling’ indicates that if given opportunity Mr Warsap would be at significant risk of re-offending. He appears to have understood this previously and acknowledges it currently, despite previous treatment.
Dr O’Brien’s opinion was that the prisoner was both incapable and unwilling. The way he put it was:
… Mr Warsap has demonstrated both an incapacity and unwillingness to control his abnormal sexual proclivities, (although it must be acknowledged that for long periods of time he has apparently demonstrated a capacity to control; in my clinical experience failure to control is rarely a constant variable. However, if the legal interpretation of incapacity to control means constant/continuing incapacity over time, then I would have to alter my opinion and state that he has the capacity to control).
Vanstone J accepted the psychiatric opinions, observing:[16]
I accept without hesitation the opinions of each of Drs O’Brien, Brereton and Raeside that the prisoner is unwilling to control his sexual instincts. Accordingly, the discretion to make an order in terms of s 23 is enlivened. It remains to consider whether I am satisfied that the order is appropriate: s 23(5)(a). Mr Stokes, for the prisoner, argues that the protection of the public can be secured by having the prisoner undertake intervention while serving his sentence and by having the Parole Board fix restrictive conditions, designed to prevent the prisoner establishing close connections with a woman with children, when released. I accept the evidence of Dr O’Brien that the prisoner is a homosexual paedophile. I do not accept that he has a sexual attraction to adult females and in this regard I prefer the opinion of Dr O’Brien to that of Dr Raeside. However, as regards this matter I attach no significance to the difference. I note Dr Brereton’s opinion that the prisoner is more likely to be emotionally comfortable in a sexual encounter with a child than with an adult and that the prisoner appears to also have a sexual attraction to children.
[16] R v Warsap [2011] SASC 73, [9].
Vanstone J then turned to address the question as to whether, given those opinions, an order should be made, and in that respect, noted:[17]
Both Dr O’Brien and Dr Brereton were reluctant to say that, because the prisoner’s three victims were all encountered in the context of a relationship the prisoner had formed with their mother, that future risk would be confined to a recurrence of the same circumstances. Dr Brereton considered that in taking part in social clubs and the like the prisoner was either setting out to establish relationships with young boys, or was showing extremely poor judgment in putting himself in situations where he would be establishing relationships with boys and likely be tempted to engage in further criminal conduct. In my view, even if, in the future, Mr Warsap does not form a relationship with a woman with children, he will still be at risk of re-offending, absent appropriate intervention over the next several years.
On the other hand, a striking feature of the prisoner’s history is that it appears there have only been three children against whom he has offended. There have been long periods during which he was apparently able to control his proclivities. He has shown self-discipline not only in that regard, but also in ceasing to abuse liquor and overcoming his addiction to gambling. Dr Brereton considered that the same self-discipline could be brought to bear to prevent future offending. Although I have found that the prisoner is unwilling to control his sexual instincts, it seems to me he has the capacity to do so and that that capacity can be enhanced by intervention.
In many cases where an order pursuant to s 23 is sought, the records of the respondent’s offending will be prolific. In many cases there will not be these long periods between offending. That fact, together with the optimism which the three psychiatrists expressed about the utility of the available interventionist programs, coupled with the fact that I have determined to impose a long sentence of imprisonment upon the prisoner, has led me to consider that it is not, at this stage, necessary or appropriate to make a s 23 order.
[17] R v Warsap [2011] SASC 73, [10]-[12].
Finally, Vanstone J made reference to the future, observing:[18]
If, in the future, it turns out that intervention is unsuccessful, then it will be open to the Attorney-General, closer to the time of the prisoner’s release, to make a fresh application.
[18] R v Warsap [2011] SASC 73, [13].
There is one further matter of present relevance addressed by Vanstone J when dealing with the section 23 application. Vanstone J considered the challenge that the defendant made to the assertion that the complainant had been subjected to anal intercourse and in this respect observed:[19]
The prisoner did not give evidence at his trial, but in his interviews with the forensic psychiatrists whose reports I have mentioned, he denied having had anal intercourse with the boy. Plainly, I have not heard V’s evidence and therefore have not had the advantage enjoyed by the trial judge of assessing his credibility. However, inasmuch as V’s evidence describing the prisoner’s activities is uncontradicted evidence given on oath, which the jury acted upon and which the prisoner has not chosen to challenge before me, I am satisfied beyond reasonable doubt that the relevant conduct extended to anal intercourse.
[19] R v Warsap [2011] SASC 73, [7].
During the course of sentencing submissions before Vanstone J, an issue arose as to whether she should proceed to sentence on the basis that the offending included anal penetration. The defendant’s counsel at first contended that the defendant’s version should be acted on by Vanstone J when sentencing. Vanstone J did not accept this submission and raised with defence counsel whether there was an application that evidence be called on this issue. The possibility of the matter being remitted to the District Court trial Judge was also canvassed. Vanstone J also raised for consideration whether there was a power of remittal. Following this interchange, counsel for the defendant expressly abandoned any application to call evidence on the topic and any application to cross-examine the complainant on the topic.
Although it is not entirely clear, during the course of the submissions on the appeal, it may be understood that counsel for the defendant was advancing a contention that Vanstone J should have exercised her discretion to remit the proceeding. This appeared to be a submission being put in the alternative. To my mind, the withdrawal of the application for the calling of any evidence, and the absence of any application to remit makes the present submission untenable. It is evident from the transcript that the defendant not only accepted that Vanstone J had jurisdiction, but advanced no contention at all that her Honour should do other than sentence the defendant. There was no application to remit.
In my view, there was good reason in the any event why the matter should have remained in the Supreme Court. Vanstone J was properly seized of the matter, had addressed and ruled on the section 23 application and delivered considered reasons for her decision. She had received forensic psychiatric reports and heard oral evidence from the expert witnesses. When considering the discretion not to make a section 23 order, the Judge reviewed a considerable body of material and then proceeded to make relevant findings. It is to be recalled that without objection the section 23 enquiry and making of sentencing submissions proceeded at the same time. These circumstances provide a clear basis for the proceeding to have remained in the Supreme Court for the purposes of sentencing.
Sentence Appeal
It was complained on appeal that Vanstone J should not have proceeded to sentence on the basis that the victim had been subjected to anal intercourse. It was further complained that Vanstone J failed to weigh in favour of the defendant, the defendant’s offer to publicly apologise to his victim. It was said that Vanstone J was in error in concluding that the offer did not demonstrate contrition or remorse, but was advanced out of concern for the defendant’s own position. It was contended that Vanstone J’s description of the cross-examination of the victim during the trial as being “prolonged and rather aggressive”, was unwarranted. It was argued that Vanstone J imposed a sentence outside the appropriate sentencing range identified in R v D.[20] As a consequence of these matters it was said that the sentence imposed was manifestly excessive.
[20] R v D (1997) 69 SASR 413.
When sentencing, Vanstone J remarked:
Peter Robert Warsap, you were found guilty in the District Court, by verdict of a jury, of persistent exploitation of a child. Your victim was a boy of 15 years who is said to have had an intellectual age of eight to ten years. The course of offending comprising the offence occurred over a period of about six months. It included stimulation of the boy’s penis, fellatio and anal intercourse. At the time of the offending you were in some sort of a platonic relationship with the boy’s mother and you had achieved a position of trust in her household. You abused that trust by interfering with her son.
In victim impact statements which have been read to the court the profound disruption, not only to the boy’s life, but to the lives of his family members, has been starkly demonstrated.
You did not give evidence in your defence. From what you said to the three psychiatrists, from whom I have reports, it appears that you did not challenge the allegations against you, except to the extent that you did not acknowledge that you had penetrated the boy’s anus with your penis. Notwithstanding that, the boy was put through a prolonged and rather aggressive cross-examination which must have caused him a good deal of anguish. Of course, it is your right to put the prosecution to proof. But you told me, through your present counsel, Mr Stokes, just a few days ago, that you wished to publicly apologise to the boy for what you did to him and in the terms of the history of this matter that submission has a hollow ring. Plainly you can have no credit for pleading guilty, no credit for any admissions to the police and, in terms of your stated regret for the offending, I put it down to your concern for your own position.
You are 54 years of age. You have a long record of prior convictions. They are mainly serious dishonesty offences, some of which you say were caused by your need for money to satisfy your gambling addiction, but they also include a number of offences associated with abuse of liquor, offences of breaching bail, breaches of bonds and a breach of parole.
In 1983 in this court you were sentenced to a total of six years imprisonment for two counts of unlawful sexual intercourse with a person under the age of 12 and two counts of indecent assault. Then in 2002 you were sentenced in relation to two counts of indecent assault, committed in 1999, to four years imprisonment with a non-parole period of two years, which sentence was suspended. It was those two groups of offending which led the Director of Public Prosecutions to make an application that you be detained in custody until further order on account of being unwilling to control your sexual instincts. I have today declined to make such an order.
I have also considered but decided not to make an order pursuant to s 20B of the Sentencing Act to the effect you are a serious repeat offender.
The maximum penalty for the offence before the court is life imprisonment. The course of conduct established by the evidence was stimulation of the victim’s penis on about four occasions, two instances of sucking the victim’s penis and two of having anal intercourse with the victim. The maximum penalties for this conduct, if charged as specific offences, would be, respectively, imprisonment for eight years, 10 years and 10 years. In my view these maxima are relevant to the exercise of fixing the sentence, but only in a very general way. See R v D (1997) 69 SASR 413. Although the legislation there under consideration was different, there are strong parallels.
Your offending is aggravated by the fact that the boy was intellectually disadvantaged and that your dealings with him were a breach of trust. It is further aggravated by your long history of prior offending, including offending of a like nature. A long sentence is called for.
Nonetheless there are some matters in your favour. It appears that for long periods you have been able to resist the temptation to interfere with boys. You have demonstrated self-discipline inasmuch as you have given away liquor and gambling. No doubt if you set your mind to it you will be able to ensure that you do not offend again. An essential part of that will be making sure that you are not in a position where you develop relationships with boys in the future.
I have heard evidence from three forensic psychiatrists who have expertise and long experience in these matters. Each of those has expressed the opinion that if you are given opportunity to participate in the sexual behaviour clinic program in gaol – sooner rather than later – it is very likely that you will achieve a much greater insight into your offending and that upon your eventual release you will have a much better chance of avoiding reoffending. I recommend to the prison authorities that everything possible be done to ensure that you are assessed for eligibility for such a program as soon as possible. Certainly you will be in custody long enough to complete the program.
I further recommend that upon completion of the program you be reassessed by either Dr Brereton or Dr O’Brien, who are in a peculiarly advantaged position in terms of expressing opinions as to your future management.
The sentence of the court is that you be imprisoned for 13 years with a non-parole period of nine years. That sentence will be taken to have commenced on 11 September 2009 when you went into custody after being found guilty.
Vanstone J’s finding in regard to the victim being subjected to anal intercourse is to be found in the earlier extracted ruling of her Honour on the section 23 application. In my view, that was a finding that was open to be made on the section 23 application having regard to all the matters placed before her Honour. The defendant’s denial to having had anal intercourse was found in statements made in interviews with the forensic psychiatrists. However, as Vanstone J pointed out, the victim’s evidence on oath in the trial was uncontradicted. It is further relevant to observe that on the section 23 application, the defendant did not seek to give any evidence on this topic and there was no application to have the victim present for further cross-examination. In my view, there is no substance to this complaint.
Vanstone J rejected the submission that the defendant was contrite and remorseful for his conduct. It is clear from the sentencing remarks that her Honour was unimpressed by the offer of an apology and appeared to view it as disingenuous. Vanstone J considered that it was an offer on the part of the defendant designed to improve his own position and no more. The text of an apology has never been proffered and no apology has been made. The defendant has had ample opportunity to make an apology, either during sentencing submissions or at any subsequently time. I reject counsel’s submission that the defendant has not had an opportunity to make an apology. It is also relevant to observe that the defendant throughout the trial knew that he was guilty of the offence charged and had his counsel cross-examine the victim over a lengthy period in an aggressive manner knowing that he was guilty of the offence and then appealed against the conviction knowing that he was guilty of the offence. In these circumstances Vanstone’s conclusions on the question of the offer of apology were fully justified.
Vanstone J’s comments about the victim being cross-examined in a “prolonged and rather aggressive manner” were fully justified. The observations in the judgment of the Court of Criminal Appeal confirm this observation. To my mind, it is a particularly serious matter for this to have occurred when throughout, the defendant was fully aware of his guilt. The cross-examination was of a intellectually disadvantaged child.
The observations of Doyle CJ in R v D, indicate possible ranges within which a sentencing Judge may chose to commence a consideration of an appropriate penalty for sexual offending against children. These observations were not intended to circumscribe the discretion of the sentencing Judge in the particular case. Doyle CJ made explicit reference that it may well be appropriate in a particular case to commence that consideration with a notional sentence above or below the ranges indicated. It was a relevant consideration to my mind that in the present case the offending was with respect to an intellectually disabled child to whom the defendant stood in a position of implicit trust. I discern no error in the approach of Vanstone J. To the contrary, I consider the approach to sentencing and the sentence imposed to be fully justified.
For these reasons I would dismiss the appeal.
SULAN J: I agree with Gray J. I would dismiss the appeal.
DAVID J: I would dismiss the appeal. I agree with the reasons of Gray J.