R v White - [2010] SASC 77

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WHITE
[2010] SASC 77
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Layton)
31 March 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Respondent pleaded guilty to five counts of sexual intercourse with a person under the age of 14 years, that offence carrying a maximum penalty of imprisonment for life, and one count of sexual intercourse with a person under the age of 17 years, that offence carrying a maximum penalty of imprisonment for ten years - victim was the younger sister of the respondent's wife - respondent had been previously convicted of five counts of aggravated indecent assault committed against the same victim - respondent sentenced to four and a half years' imprisonment, with a non-parole period fixed at three years - application for permission to appeal against sentence by Director of Public Prosecutions.
HELD: whilst the Judge's sentencing remarks do not disclose error, the sentence imposed by the Judge demonstrates that the Judge erred - personal and general deterrence important factors in the circumstances - respondent planned meeting the victim, and facilitated contact with her - appeal allowed and respondent sentenced to imprisonment for six years and two months, after having taken into account the leniency afforded on a Crown appeal and the respondent's pleas of guilty - non-parole period fixed at four years and one month.
Criminal Law Consolidation Act 1935 (SA) s 49(1) and s 49(3); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v D (1997) 69 SASR 413; R v E, AD (2005) 93 SASR 20, discussed.
Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212, considered.

R v WHITE
[2010] SASC 77
Court of Criminal Appeal: Doyle CJ, Vanstone and Layton JJ

DOYLE CJ: The Director of Public Prosecutions has applied for permission to appeal against a sentence imposed by the District Court.
Mr White pleaded guilty to a number of offences. He pleaded guilty to five counts of sexual intercourse with a person under the age of 14 years, contrary to s 49(1) of the Criminal Law Consolidation Act (SA) (1935) (the CLCA). Each of those offences attracted a maximum punishment of imprisonment for life. He pleaded guilty to one count of sexual intercourse with a person under the age of 17 years, contrary to s 49(3) of the CLCA. The maximum punishment for that offence is imprisonment for ten years. The victim in each case was the same person. I will refer to her as A. At the time of the first five offences she was 13 years of age. At the time of the sixth offence she was 14 years of age.
The Judge imposed a single sentence of imprisonment for four years and six months. The Judge fixed a non-parole period of three years. The Judge directed that the sentence and non-parole period commence on 13 November 2009, the day when Mr White was taken into custody.
The Director argues that the sentence is manifestly inadequate. The Director submits that the sentence discloses an error of principle, in that the Judge has failed to sentence by reference to an appropriate sentencing standard. The Director submits that, in the circumstances, and bearing in mind the principles that apply to an application for permission to appeal by the Director, the case is one that calls for intervention by the Court.
Offending Conduct
In December 2006 Mr White came before the Local Court at Albury in New South Wales, having been convicted on five counts of aggravated indecent assault. The victim was A. The convictions were recorded after a contested hearing. The offences arose out of incidents in November 2005 and February 2006. They involved what the Magistrate described as touching of A under her clothing, in the first incident, and outside her clothing in the second incident. The Magistrate’s sentencing remarks show that he regarded the offences as serious.
The Local Court sentenced Mr White to imprisonment for 18 months, but made an order that the sentence be suspended upon Mr White entering into a bond to be of good behaviour for a period of 18 months. A condition of the bond was that he participate in appropriate treatment if directed to do so.
Mr White did not receive any treatment. That is not his fault; it appears he was not directed to do so. But there is no indication that he took any initiative in this respect.
At the time of the offences Mr White was 21 years of age. He was engaged to be married to A’s older sister at the time.
Mr White married A’s older sister, not long after 1 December 2006, when he was sentenced by the Local Court.
At this time A was living with her grandmother. Her father was in prison. Her mother had died. Material before the Court indicates that A had very poor eyesight. This would have added to the vulnerability that went with her age and her earlier exposure to sexual offences committed by Mr White. There was some, but limited, contact between Mr White and A, the family being aware of the offending conduct.
In January 2009, while at his wife’s birthday party, Mr White made plain to A his interest in her. He kissed her. He wrote her a letter stating his desire to have sexual intercourse with her. He proposed that they communicate secretly. A responded to these overtures from Mr White.
Mr White admits having had intercourse with A in New South Wales on 16 January 2009. This Court was told that charges are pending against Mr White in relation to incidents involving A in New South Wales, but the Court has no details of the charges. It is appropriate for the Court to proceed on the basis that the admitted act is part of the context in which the offending occurred. However, as Mr White may yet be dealt with in respect of this incident, it cannot be allowed to affect the ultimate outcome.
Mr White maintained contact with A. He gave her a mobile phone to facilitate that contact.
On 23 January 2009, by arrangement with Mr White, A left her grandmother’s house. Mr White and A set off for South Australia. They were contacted by the police while they were travelling. Mr White went to a convenient police station, and denied that A was with him. Later he was stopped by the police. A was in the car. As a result of this A was placed in foster care in a town in New South Wales.
Apparently Mr White continued on to South Australia. Despite all that had happened, he made contact with A through the internet. In very early February 2009 he bought a bus ticket to enable A to leave the family who were caring for her, and travel by bus to Adelaide. He met A at the bus station.
They travelled to Victor Harbor, about 80 kilometres south of Adelaide, on 6 February 2009. A stayed with him at a caravan park for two nights. While at Victor Harbor the first five offences in question were committed.
I gather that Mr White and A knew that the police were looking for them. They separated. A went to stay with relatives in an Adelaide Hills town.
A month later Mr White again made contact with A. On 2 March 2009 he met with A, again by arrangement, and the sixth offence occurred. Mr White admits that on that occasion there was another act of intercourse, and an act of indecency. No charges were based on these acts.
This is no more than a bare summary of the events.
There are several striking features of the offending conduct.
Mr White was not deterred by the punishment imposed by the Local Court in New South Wales. The circumstances disclose that he was determined to maintain contact with A, with a view to sexual relations occurring. There was a significant element of stealth and planning in what Mr White did. There is a brazen aspect to his conduct, bearing in mind his dealings with the police and the way in which he facilitated A leaving her foster carers and coming to Adelaide.
The contact that Mr White had with A in early 2009 was made despite the fact that he was married to her older sister, and despite the fact that he well knew that he should stay away from her. He then drew her away from her grandmother’s care, then from the foster carers, and then had contact with her again despite her being under the care of relatives in the Adelaide Hills town.
The Judge’s Sentencing Remarks
The Judge summarised the facts. No criticism can be made of that summary.
The Judge noted that Mr White had an unremarkable background. He had a good work ethic, and had maintained employment, even while on home detention bail. Not surprisingly, his marriage to A’s older sister had come to an end. As the Judge said, Mr White had “effectively abandoned” his two young sons. The Judge referred to a report from a psychologist who noted that Mr White had expressed true remorse for his actions. Referring to a statement to the psychologist that A had sought Mr White out, and that he did not initiate the first contact, the Judge emphasised that Mr White was responsible for his behaviour and the position in which he found himself.
The Judge described the offending as “very serious”. This was because of the age of A, the circumstances of the offending, and because of his failure to “fully appreciate that [he] corrupted her”. The Judge said that general deterrence was an important consideration. So was the need for specific deterrence, having regard to Mr White’s continued offending after appearing before the Local Court in New South Wales.
The Judge imposed a single sentence of imprisonment pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). The Judge allowed for the period of one week spent in custody, and a period of about six months spent on home detention bail. We were told that the period on home detention bail was in fact about eight months.
The Judge imposed a single sentence of imprisonment for four years and six months. But for the pleas of guilty the sentence would have been six years. The Judge fixed a non-parole period of three years.
Consideration of Appeal
No significant criticism was made of the Judge’s approach to the facts of the case. I agree that there is no indication of any error in that respect by the Judge. Nor do the Judge’s sentencing remarks disclose any error of sentencing principle, or in the Judge’s general approach to the facts. The Judge referred to the relevant and appropriate matters.
However, in my opinion, the end result demonstrates that the Judge has erred. The starting point of six years was much too low for offending of this seriousness. The starting point does not reflect, and is not consistent with, an appropriate standard of sentence for this kind of offending. It is not just a case of the Judge falling below the level of sentencing that is appropriate in all the circumstances. It is a case in which the starting point reflects an inadequate sentencing standard, and one that should be corrected.
The Court was referred to observations I made in R v D (1997) 69 SASR 413 relating to sexual offending involving young children. We were referred to further observations that I made on that topic in R v E, AD [2005] SASC 332; (2005) 93 SASR 20 at [20]-[21] in particular. What I said in those cases is not directly applicable to the present case. However, in each of those decisions I emphasised the seriousness of sexual offending involving young children, and relatively young children, and I emphasised also the need to bear in mind, when it is the case, that the maximum sentence is life imprisonment.
There are features of the present case that call for a much more severe sentence than the Judge imposed. I have touched on them above. I will summarise them.
First, the circumstance that Mr White was not deterred by the sentence imposed by the New South Wales court. Second, it is irrelevant whether or not A made an approach to Mr White in early 2009. He encouraged her to respond to his advances. Third, through the course of this unlawful conduct Mr White engaged in careful planning and deceit to achieve his aims. Fourth, A was from within the family group, and Mr White must have been aware of her general vulnerability. Fifth, Mr White drew A away from the care of her grandmother, from the foster carers in New South Wales, and then from her relatives in South Australia. He showed an unusual degree of determination to achieve his ends. The same applies to his dealings with the police. Sixth, as a result of his offences in November 2005 and February 2006 Mr White was aware of the likely effect of his conduct on A, and of the risk of her family rejecting her, as later happened. Seventh, there is a clear need for a substantial element of personal deterrence. The report from the psychologist states that “…Mr White has some distance to go in fully appreciating how he might rehabilitate himself”. Eighth, it continues to be the case that general deterrence is important. Men like Mr White have to understand that engaging in sexual relations with female children and with young women will be punished severely. They need to understand that the law is there to protect children and young women against their own immaturity and vulnerability. The harmful effect of such offending on children is well illustrated by the Victim Impact Statement provided by A. The offending has led to her being treated for stress and anxiety and has significantly interrupted her schooling.
The case is a truly disturbing one.
I appreciate, and make allowance for, the circumstance that apart from offences arising out of his relationship with A, Mr White has committed no other offences. He has never been imprisoned. The sentence imposed by the Judge is a significant one for a first offender, and for a man aged 25 years. I have not overlooked the fact that Mr White himself is relatively young, and is obviously an immature person.
But in my opinion these offences, considered in their context, called for a substantially heavier sentence than that which the Judge imposed. In my opinion the Judge’s sentencing remarks demonstrate that she failed to have regard to an appropriate standard of sentencing.
I take into account what this Court and the High Court have said about the role for prosecution appeals against sentence, and for the need for restraint in that respect: R v Osenkowski (1982) 30 SASR 212 at 213; Everett v The Queen (1994) 181 CLR 295; R v Nemer [2003] SASC 375; (2003) 87 SASR 168.
However, in my opinion the error that is disclosed here is an error of principle. Permission to appeal should be granted to the Director, to enable the Court to correct that error of principle. It is not sufficient, having identified the error, to allow the sentence to stand. To do so would be to leave standing a wholly inadequate sentence. The appeal should be allowed. The sentence imposed by the District Court should be set aside.
It suffices to say that I proceed on the basis that an appropriate sentencing standard would have involved a substantially higher starting point of the order of nine years’ imprisonment, even allowing for the time on home detention bail and the short period of his custody.
Allowing for the restraint usually shown by the Court when increasing a sentence on an appeal by the Director, I consider that a single sentence of eight and a half years’ imprisonment, before making a reduction for the guilty pleas, is the appropriate starting point in this case. As I have said, were it not an appeal by the Director, an appropriate starting point would be somewhat higher. I would follow the same course as the District Court Judge, and reduce the sentence by 25 per cent on account of the guilty pleas. That results in a head sentence of six years and two months. I would fix a non-parole period of four years and one month. I would direct that the head sentence and non‑parole period be taken to have commenced on 13 November 2009.
VANSTONE J: I agree with the orders proposed by the Chief Justice and with the reasons he has provided.
LAYTON J: I respectfully agree with the orders proposed by the Chief Justice and for the reasons which he gives.