R v WHITTEMORE

[2012] SASCFC 88

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v WHITTEMORE

[2012] SASCFC 88

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Nyland and The Honourable Justice Anderson)

24 July 2012

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES

Applicant convicted on eight counts of unlawful sexual intercourse - District Court Judge imposed a single sentence of four years one month and 21 days' imprisonment - a non-parole period of 15 months was fixed - District Court Judge declined to suspend the sentence - application for permission to appeal against sentence of immediate imprisonment - a Supreme Court Judge refused permission to appeal - applicant requested that his application be heard by the Full Court.

The issues raised on the application were whether the failure to suspend the sentence was manifestly unreasonable, and whether the sentence imposed was manifestly excessive in the circumstances of the case.

Held: application for permission to appeal refused - the failure to suspend the sentence was not manifestly unreasonable - the head sentence was not manifestly excessive in the circumstances.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Petrovski [2005] SASC 330; R v D (1997) 69 SASR 413, discussed.
R v Cambridge [2004] SASC 399, considered.

R v WHITTEMORE
[2012] SASCFC 88

Court of Criminal Appeal:  Kourakis CJ, Nyland and Anderson JJ

1. KOURAKIS CJ:    This is an application for permission to appeal against a sentence of immediate imprisonment imposed in the District Court upon the applicant’s convictions on eight counts of unlawful sexual intercourse. The sentencing Judge imposed a single sentence, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA), of four years one month and 21 days’ imprisonment for all of the offences.He fixed a non-parole period of 15 months.  The District Court Judge declined to suspend the sentence.

2. A Judge of this Court refused permission to appeal.  The applicant requested that his application be determined by the Court of Criminal Appeal.  The application was heard on 18 June 2012.  On that day this Court refused permission.  We now publish our reasons.

3. The applicant raised two principle contentions on the hearing of the application.  First, the applicant submitted that the sentencing Judge erred by deciding not to suspend his sentence.  Secondly, the applicant complains that the sentence imposed by the sentencing Judge was manifestly excessive.

   Facts

4. The offences were committed over about one month in October 1984, shortly after the victim’s 15^th birthday.  The victim, to whom I will refer as V, was a young Taekwondo athlete who had recently competed in the Australian Championships. The competition had been held on the Gold Coast in Queensland, where V met the applicant for the first time. 

5. On her return to South Australia the applicant, who was then aged 33 became V’s personal coach.  It was his responsibility to drive V home after training when her parents were not able to do so.  The offending took place on four separate occasions.  On three of those occasions the applicant interrupted the journey home after training to park in a suburban street (the journey incidents).  On each of the journey incidents the applicant had penile sexual intercourse with V.  He also engaged in another act of sexual intercourse either by digital penetration, cunnilingus or fellatio.  Those six acts of sexual intercourse are the subject of six of the counts.  During the journey incidents the applicant also engaged in other unlawful sexual activity with V which was not charged. 

6. On one occasion, the applicant hired a hotel room to which he secretly took V.  V had told her parents that she would be staying overnight with a friend.  Again there was digital and penile intercourse which were the subject of the remaining two counts.  The offences in the hotel were committed shortly before V and her family left Australia to reside overseas on 2 November 1984.

7. The Judge found that in 1984 V was a relatively naive 15 year old girl who lived a sheltered life with her devoutly Christian family.  The offending was first discovered when V’s parents came across a letter which the applicant had written to V in England.  The letter included explicit references to his sexual encounters with V.  The letter distressed V and her parents, but V could not bring herself to report the applicant’s conduct to police even after her family returned to Australia a year later.  Only after the death of V’s father, in 2009, was she able to make a formal complaint to police. 

8. The victim impact statement prepared by V discloses the havoc wreaked on her life by the offending and the shame that she needlessly carried for offending which was the applicant’s sole responsibility.  As a promising young athlete, V had much to look forward to.  The applicant’s conduct, at least in a large part, denied V the realisation of that promise.

9. The applicant admitted some of the offending in a telephone conversation with V, instigated by police after V had made her formal complaint, which was covertly taped.  The applicant also made admissions in a subsequent police interview.  However, he initially pleaded not guilty to the offences with which he was charged because he disputed the date and occasion on which he had first offended against V.  The applicant changed his plea to guilty on some of the charged counts on the first day of trial after they were amended to reflect, the now accepted fact that the offending commenced after V returned from the Australian Championships and, therefore, just after her 15^th birthday. 

10. At the time of the offending the applicant’s first marriage was under strain.  He was divorced in 1987 and later remarried.  Nonetheless, the applicant’s former wife and his daughter provided strong supportive letters, which were placed before the Judge.  The applicant’s current wife also provided a supportive letter.  The letters show that the offending was an aberration in the behaviour of a man who was otherwise a responsible husband and father.   

11. The applicant has had a successful sporting career and has competed in Taekwondo at an international level.  He has also been a productive member of the Australian workforce.  He is a fitter and turner by trade but he has also worked in sales and in the construction industry.  A colleague attested to the good reputation the applicant earned in his working life.  The applicant is now aged 61 and has not offended in any other way.

    Suspended Sentence

12. The Judge’s reason for not suspending the sentence was that the offending was too serious.  Plainly enough, the Judge was not satisfied that the applicants good character, apart from the offending, was reason enough to suspend the imprisonment he imposed.  It was not necessary for the Judge to repeat the competing considerations to which he had already adverted to in his remarks for the purpose of explaining his refusal to suspend the sentence of imprisonment.  There is no error in the succinctness with which he stated his reasons. 

13. Offending like the applicant’s presents a difficult dilemma.  The applicant has obviously rehabilitated himself and there is no risk at all that he will offend again.  Apart from this aberrant offending, when he was about half his present age, he has led a good life.  The convictions have brought him face to face with a spectre from his distant past which he, no doubt, had hoped his subsequent exemplary life would have banished forever. 

14. However, that same spectre has haunted V over the same long period.  It is in the nature of this type of offending that many victims are unable to disclose it until many years later, in which time it has an insidious and deleterious effect on their psyche.  General deterrence therefore remains important even though the sentence is long delayed.  Balancing these considerations is difficult.  The gross breach of trust, the extent of the sexual violation of V, and the applicant’s persistence with the offending all militate against suspension in the particular circumstances of this case.  In my view, it is not at all arguable that the failure to suspend was manifestly unreasonable even if it be the case that other judges may have exercised the discretion differently.

    Manifestly Excessive

15. On the length of the sentence the applicant’s complaint is that the Judge wrongly applied the sentencing benchmark in R v D.[1]  The Judge certainly referred to R v D, and other authorities dealing with offending similar to that in R v D, for “guidance”.  The Judge was not only entitled to refer to R v D for that purpose, he was obliged to do so.  In R v D, Doyle CJ, with the concurrence of Bleby J, promulgated a sentencing standard for offences involving unlawful sexual intercourse with young children committed over a period of time by a person in a position of trust.  They declared that, generally, such offending should attract a sentence of 12 years for children under 10 years of age, and a sentence of 10 years for older children. 

    [1] (1997) 69 SASR 413.

16. It is not possible to state with certainty the period of time over which the offending must take place to attract the sentencing range declared in R v D,[2] but it should be remembered that the offending in R v D occurred over just two months, albeit on an almost daily basis.  Neither the frequency of the offending nor the period can be stated precisely.  Nonetheless, the standard should be understood to include cases of serious sexual violation of a victim that is repeated persistently over a period of some weeks or more.  This is such a case.  In any event, the sentence actually imposed by the Judge is less than half the standard approved of in R v D. 

    [2]    R v Cambridge [2004] SASC 399 at [46].

17. The applicant’s counsel submitted that the circumstances of this case placed it in a different category of sexual offending than that considered in R v D, which she identified by reference to the authorities considered in R v Petrovski.[3]  R v Petrovski should not be understood as establishing a sentencing standard for cases similar to those surveyed by Gray J.  The question in R v Petrovski was whether the sentencing Judge’s decision not to suspend should be interfered with on appeal.  The decision of the Court of Criminal Appeal shows, if any authority were needed, that there may be good reason to suspend a sentence of imprisonment even in cases of serious sexual offending.  The authorities discussed in R v Petrovski generally concerned occasional sexual encounters by offenders who were not in a position of trust or who were closer in age to the victim.  That is not surprising given the issue in that case was whether the sentence should be suspended.  Be that as it may, R v Petrovski does not establish a sentencing standard for any particular category of sexual offending.

    [3] [2005] SASC 330.

18. Even if the applicant’s offending had not been within the category governed by R v D, the Judge would have committed no error in referring to the standard it set for general guidance.  The sentencing ranges appropriate for other broad classes of sexual offending cannot be determined in isolation.  On the contrary, it is necessary to ensure coherence in sentencing for a particular offence by ensuring an appropriate relativity across all classes of offending.

    Conclusion

19. Ultimately, it is not arguable that the head sentence, which is less than half the standard set for offending of the kind described in R v D, is manifestly excessive in the circumstances of this case.  The non-parole period that was fixed is mercifully less than the ordinary proportion.

20. For the above reasons we refused permission to appeal.

21. NYLAND J:          The facts of this matter are set out in the reasons of the Chief Justice.  The principal argument on the application for permission to appeal related to the reference by the Sentencing Judge to the decision in R v D.[4]  Counsel submitted that in reliance on R v D the Judge had fixed as a benchmark a starting point higher than was warranted in the circumstances of this case.  That resulted in a sentence which was manifestly excessive. 

    [4] (1997) 69 SASR 413.

22. I agree with the Chief Justice that no error has been demonstrated by the Judge in his reference to R v D in his sentencing remarks.  It is clear that he only used that case as a guide.  That is demonstrated by the fact that immediately after referring to R v D the Judge said:

    Of course your case, like all cases, must be decided on its own facts and the authorities in this area can be of limited assistance only.  This is all the more so here because of the particular circumstances of your offending and because of the many personal considerations in your favour.   (emphasis added)

23. I also consider that the Judge appropriately considered the question of delay and the rehabilitation of the applicant when he turned his mind to the question of suspension of sentence.  As to this aspect of the matter, the Judge said:

    An important consideration when ultimately I come to sentence is the fact that the offences were committed such a long time ago and that in the intervening period you have proved yourself to be a responsible, decent and law-abiding person.  It has come as a great shock to you and your family that after all this time you are facing the prospect of a prison sentence.  This together with the many personal considerations in your favour as explained in your counsel’s submissions suggests that leniency with respect to both head sentence and non-parole period is warranted.  These are also matters to which serious regard needs to be given when considering the question of possible suspension of the prison term that I must impose.

24. The Judge then referred to R v V, A J.[5]   In that case Doyle CJ discussed the limited weight to be attributed to the passage of time and intervening conduct and said:[6]

    … It is a not uncommon circumstance that, by the time offending of this kind comes to light, the offender has resumed a normal law-abiding life. Offenders will escape due punishment if the passage of time and the resumption of a law abiding life are given too much weight in cases of this kind. 

    [5] [2012] SASCFC 10.

    [6] Ibid at para 3.

25. The Sentencing Judge then went on to say:

    In addition, when considering your relatively advanced age, now 61, and the long delay in the prosecution of these offences, I must weigh the following competing considerations: on the one hand, the sentence I shall set is likely to consume a not insignificant proportion of your remaining life and any time spent in custody is likely to be more difficult for a first offender such as you experiencing custody for the first time in their 60s.  On the other hand, because your crimes have been discovered so late, you have been able to enjoy many of the perhaps best years of your life in freedom rather than in custody.  I am also aware that time in custody in South Australia would be unusually hard on you given that your family and others close to you live in Queensland.

26. The Judge ultimately concluded that the offending was so serious and the need for general deterrence so strong that he could not find good reason to suspend the term of imprisonment.  In my opinion the Judge carefully considered and weighed up all relevant matters before reaching the conclusion not to suspend the sentence and that was a finding which was open to him.  Notwithstanding his decision not to suspend the sentence, the Judge extended considerable leniency towards the applicant by fixing a relatively short non parole period.  For the above reasons and those expressed by the Chief Justice I joined in the order of the Court refusing the applicant permission to appeal.

27. ANDERSON J:     I agree with the reasons of Kourakis CJ in refusing permission to appeal.