R v Whyte No. Sccrm-99-275

R v WHYTE
[2000] SASC 93

Court of Criminal Appeal: Doyle CJ, Mullighan and Bleby JJ

DOYLE CJ I agree that the appeal should be dismissed for the reasons given by Mullighan J. There is nothing that I wish to add to those reasons.
MULLIGHAN J The appellant pleaded guilty in the District Court to 23 serious sexual offences committed on his niece by marriage on occasions over a period of 13 years from late 1982 until early 1996. One sentence of imprisonment for nine years with a non-parole period of five years to commence on 6th August 1997 was imposed. He appeals against that sentence on the sole ground that it is manifestly excessive.
He was sentenced on 21st August 1997. The delay in bringing the appeal was apparently due to a misunderstanding between the appellant and a legal representative and time within which to appeal was extended by a Judge of this Court.
The submission of the appellant on this appeal is that the learned sentencing Judge did not apply the correct sentencing standard for offences of this nature. In R v D (1997) 69 SASR 413, this Court had occasion to make observations about the appropriate sentencing standard for the offence of persistent sexual abuse of a child contrary to s74(1) of the Criminal Law Consolidation Act 1935. That offence was introduced by that section which came into operation on 28th July 1994. S74(2) provides that the offence consists of a course of conduct involving the commission of a sexual offence against a child on at least three separate occasions, whether the offence is of the same nature on each occasion or differs from occasion to occasion. S74(3) provides that the occasions must occur on separate days. S74(7) provides that a person convicted of the offence is liable to a term of imprisonment proportionate to the seriousness of the offender’s conduct which may, in the most serious of cases, be imprisonment for life.
In R v D Doyle CJ, with whom Bleby J agreed, said that sexual offences involving victims under the age of 12 years, where there are multiple offences committed over a period of time, should attract, as a starting point, a head sentence of about 12 years’ imprisonment, not only where the charge is persistent sexual abuse of a child but also where, as here, there are multiple sexual offences and a single sentence is imposed under s18A of the Criminal Law (Sentencing) Act 1988. However, he acknowledged that in an appropriate case the starting point might be higher or lower. He went on to say that when the child victim is over the age of 12 years, the starting point should be ten years. A little earlier in his reasons for judgment, Doyle CJ said at p424:
“It is not necessary for the court to give a warning before increasing the range of penalties for a particular type of offending: Poyner v The Queen (1986) 60 ALJR 616; Yardley v Betts (1979) 22 SASR 108 at 113-114, per King CJ; R v Lewfatt (1993) 3 NTLR 41 at 43-44, per Angel J and (at 45-46) per Priestley J. Nevertheless, as the cases cited recognise, warnings do have a part to play in the sentencing process. I consider it appropriate that the heavier penalty should be imposed in cases in which a conviction is recorded hereafter or a plea of guilty is entered hereafter. Although the heavier range of penalties could be applied in the present case, I consider that as a matter of fairness the present case should be dealt with by reference to the standard reflected in the previously decided cases to which I have already referred.”

The decision in R v D was given on 12th September 1997, a short time after sentence was imposed on the appellant. The Chief Justice acknowledged that a sentence may be reduced by reason of allowances for a plea of guilty, co‑operation with the police, genuine contrition and other matters.

It is submitted by Mr Edwardson, for the appellant, that the learned sentencing Judge erred in his approach to the sentence in that he adopted the wrong standard of sentencing. The sentence should have been based upon the standard at the time the appellant was sentenced and not at the level which was soon to be fixed in R v D. It is submitted that in accordance with the observations of Doyle CJ in R v D which I have cited, a higher sentencing standard should not be adopted except when a warning has been given and the conviction and sentence occurs thereafter.
In R v D, Doyle CJ referred to five earlier decisions regarding sentences imposed for multiple sexual offences against children: see pp421-422. It is unnecessary to repeat his summary of those decisions. In four of those cases a head sentence of six years was imposed or confirmed. In R v Lewis (1993) 60 SASR 582, the Court expressed the view that a head sentence of 12 years was justified but should be reduced to eight years on account of the plea of guilty and contrition. However, in Lewis the sentence was imposed before truth in sentencing and so it is to be expected that the starting point of 12 years took account of remissions.
During argument we were referred to other decisions of this Court before the decision in R v D involving sexual offences against children over a significant period of time. They show that head sentences of five to seven years were not uncommon.
The cases referred to in R v D, and in argument on this appeal, do not establish a maximum standard or a range of sentences for the worst type of case. In my view, they establish a general standard at the time for multiple offending of this nature where there are common features of aggravation such as a breach of trust. There will always be cases which fall outside an established sentencing standard either because in the particular circumstances the standard would be inadequate or too severe.
It may be accepted that the Court fixed a higher sentencing standard in R v D for these types of cases, but there was no attempt to fix a standard for the worst type of case. As Doyle CJ acknowledged, the starting point might be higher or lower than a head sentence of 12 years for offences involving children under the age of 12 years.
However, sentencing standards established by the Court are never rigid. As Cox J observed in R v King (1988) 48 SASR 555 at p557, they are “general guides to those who have to sentence in the future”. I refer also the observations of Doyle CJ in Police v Cadd (1997) 69 SASR 150 at pp166-167. Cox J in R v Hooper (unreported, 21st April 1995, Judgment No S5048) expressed the position in this way:
“It is necessary to say again that a penalty range or tariff for a particular crime, established by the practice of sentencing judges or by decisions made on appeal, is not something rigid and immutable from which no departure, certainly no upwards departure, may ever be made. Any standard range is intended to accommodate the ordinary run of cases, but there will be exceptional cases from time to time that fall outside the range. See The Queen v King (1988) 145 LSJS 278 at 280; The Queen v Prendergast (1988) 147 LSJS 486 at 487-8; Nixon (1993) 60 ACrimR 83 at 88-9. The overriding principle is always the need to fix a sentence that is proportionate to the gravity of the offence - the principle of proportionality, as it has been called.”
It follows that in the present case the learned sentencing Judge had to impose a sentence which applied the appropriate principles of sentencing in the circumstances. It seems that he decided, correctly in my view, that a sentence in the range applied by the Courts in serious, but not uncommon cases, would be inadequate. In his sentencing remarks, he described the appellant’s conduct towards the victim as “sexual misbehaviour of the most appalling and abhorrent kind”. He went on to say:
“I refer, in particular, to the nature of the offences charged and the period over which they occurred, the young and formative age of the victim during the early years of the offending, your exploitation of the trust of family members to gain more or less unrestricted access to the victim, and the detrimental impact that the offending has had and will continue to have upon the victim.
These considerations and the need for personal and general deterrence combine to call for a very substantial term of imprisonment.”
In order to appreciate the significance of those remarks, it is regrettably necessary to mention the circumstances of the offending in some detail.
At the time of sentencing, the appellant was aged 45 years. He was married to a sister of the victim’s mother. He and his wife had two children of their own, a boy and a girl, who at that time were aged 20 years and 16 years respectively. He had a sound employment history and no previous convictions.
The appellant first began to sexually abuse the victim when she was aged two or three years. He last abused her when she was aged 20 years. The sexual abuse occurred frequently over a period of 18 years, longer than the period embraced by the charges. It began with the indecent touching of her vagina and progressed to fellatio, cunnilingus, masturbation of his penis and, after she reached puberty, sexual intercourse by both digital and penile penetration. The victim cannot remember all of the incidents of sexual abuse but estimates that the appellant abused her on at least 200 different occasions.
The appellant had family reasons to visit the victim’s mother and there were many occasions when the victim visited his family at his house. On occasions she stayed overnight and on a few occasions she accompanied the appellant and his family on holiday. It seems that on almost every occasion, the appellant created an opportunity to be alone with her and engaged in some sort of sexual conduct. On one occasion his daughter found the appellant and the victim together in a shed as the victim was dressing after sexual activity. On another occasion, the appellant sexually abused the victim in the presence of his children whilst on a holiday in Mount Gambier believing them to be asleep. His son was not asleep and saw the victim get into the appellant’s sleeping bag. On another occasion he sexually abused her when on a holiday at Hindmarsh Island whilst caring for her and his own children, although they were not in the near vicinity. On many other occasions he sexually abused the victim in his own home including in the bedroom of his daughter whilst the daughter was asleep.
During the period between which the victim was aged 6 and 14 years, the appellant took photographs of her naked vagina and of her naked breasts. Usually the photographs were taken before he sexually abused her. The victim estimated that photographs were taken on about ten occasions and they came into the possession of the appellant’s children.
After the victim attained the age of 17 years, she began to object to the sexual conduct. She told him that she did not want him to touch her again. After a few months, he resumed the conduct and continued thereafter until she was aged 20 years despite her objection.
According to the victim, late in 1996 the appellant told the victim that his wife and son knew that he had been molesting her. He told her that if she said anything he would lose his house, car and job and that he would go to gaol. He also told her that if her grandparents found out, it would kill them. At that time, her grandmother was ill. He asked her if she would deny the conduct and she said that she would not say anything. She told the police that she felt sorry for the appellant and he had made her feel guilty as if it was her fault that he was going to lose everything. She said she was too embarrassed to tell anyone. These matters were not put to the appellant when he was questioned by the police, but no submissions to the contrary were made on his behalf.
A few months later the appellant’s wife told the victim that she knew he had been molesting her. Her son had told her of the incident at Mount Gambier and she had made her own observations of the appellant leaving the victim’s bedroom. She told the victim that the appellant had admitted oral sex on one or two occasions a year.
In early 1997 the victim and her mother discussed the matter and it was reported to the police.
The appellant approached the police and submitted to a lengthy interview. He was charged with some offences and released on bail. Later he submitted to another lengthy interview. He co-operated with the police and eventually pleaded guilty to all of the charges at an early opportunity. Whilst the appellant said that there were some matters which he could not remember, which is understandable given the long period of offending, he made what might be regarded as admissions including that he persisted in the conduct despite the objections of the victim and that he took some of the photographs. He accepted that he took photographs for the purpose of subsequent self gratification. He acknowledges that he commenced to abuse the victim when she was about two or three years of age, but he could not be precise.
Mr Burvill, a clinical psychologist attached to the Sexual Offenders Treatment and Assessment Programme, saw the appellant on two occasions in May 1997 and again in July 1997. He was not found to have indications of psychopathology and was regarded as a suitable candidate for extensive treatment in the Programme without which he would possibly be at risk of further offending. The appellant had a stable relationship with his wife until she became aware of his offending. He had no prior convictions and had a long history of stable employment. At the time of sentencing, he was separated from his wife and children.
In her victim impact statement, the victim described the tragic, and possibly permanent, consequences to her of the offences. I do not propose to set out the contents of the victim impact statement in these reasons in the interests of privacy of the victim. I merely mention that she gives a moving and distressing account of her life and upbringing in the context of the most serious abuse of her. She has stated that the appellant took away her innocence and his violation of her has compromised her chances of a happy, decent and fulfilling life. Also, she lives in fear that someone will find the photographs and cause further distress and embarrassment to her.
It may readily be seen why these offences fall into the worst category of offences of this nature. Mention has been made of the length and nature and the offending. By the time the matter was reported to the police, the appellant had been abusing her for nearly all of her life. He was in a position of trust. He was an adult male figure in the life of the child in the absence of her father. She was entitled to his care, protection and guidance. He compromised her welfare and all the more so by abusing her in the presence of his own children. The taking and keeping of the photographs is a particularly serious matter of aggravation. So too is his continuation of the abuse over the objection of the victim.
The appellant treated the victim as a sexual chattel. He used her as he wished without any consideration for her well-being. When she had told her mother, he put his own interests first and attempted to persuade her not to say anything to the police.
I do not think any particular sentencing standard is appropriate. Upon sentencing, the learned sentencing Judge said that the head sentence reflected a reduction of one quarter for the appellant’s co-operation with the police and his early pleas of guilty. He expressed no finding about remorse or contrition. It may be seen that the learned sentencing Judge took a head sentence of twelve years as a starting point. In my view, given the seriousness of the offending he was fully justified in so doing. The extent of the reduction and the non-parole period were appropriate.
I can find no error in the exercise of the sentencing discretion. I would dismiss the appeal.
BLEBY J I too agree that the appeal should be dismissed. I agree with the reasons given by Mullighan J.

[2000] SASC 93

12 April 2000