R v Wilson - [2009] SASC 92

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILSON
[2009] SASC 92
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kelly)
6 April 2009
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
Appeal against sentence - defendant and appellant, a medical practitioner, charged with two counts of unlawful sexual intercourse with a former patient - defendant pleaded not guilty in relation to both counts - defendant submitted he believed on reasonable grounds that the complainant was aged at or above 17 years as per defence in section 49(3) of Criminal Law Consolidation Act 1935 (SA) - convicted by jury on both counts - whether sentencing judge erred in failing to suspend sentence - whether sentencing judge erred in placing too much weight on personal and deterrence for persons in position of the defendant - whether defendant rehabilitated - whether defendant in position of trust.
Held: appeal dismissed - offending too serious to warrant suspension of sentence.
Criminal Law Consolidation Act 1935 (SA) s 49(3); Criminal Law (Sentencing) Act 1988 (SA) s 18A and s 38, referred to.
Markarian v The Queen (2005) 228 CLR 357; Woods v Samuels (1974) 8 SASR 465; Bignell v Police (Unreported, Supreme Court of South Australia, Civil, Bleby J, 11 December 1997); R v McInerney [1986] 42 SASR 111, considered.

R v WILSON
[2009] SASC 92
Court of Criminal Appeal Gray, Sulan and Kelly JJ
GRAY AND SULAN JJ.

This is an appeal against sentence.
On 3 December 2008, the defendant and appellant, Gregory Colin Wilson, was sentenced to a term of imprisonment of two years and eight months. A non-parole period of thirteen months was fixed. The trial Judge declined to suspend the sentence.
The question for determination on this appeal is whether the term of imprisonment imposed by the sentencing Judge should have been suspended. More particularly, the question is whether the sentencing discretion not to suspend the sentence miscarried. In Markarian, the High Court confirmed the approach to be followed by this Court: [1]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
[1] Markarian v The Queen (2005) 228 CLR 357 at [25] – (footnotes omitted).
The Facts
On 15 September 2008, the defendant was convicted by jury verdict of two counts of unlawful sexual intercourse. It was alleged that during 1991 on two occasions at Highbury and North Haven, the defendant had sexual intercourse with a girl of the age of 16 years and a few months. The defendant was then aged 42 years. The dates of the offending were the subject of much contention at trial.
In respect of the first count, the defendant instigated the act of sexual intercourse, which involved the digital penetration of the complainant’s vagina in a spa at the Highbury home of the defendant. The complainant had attended at the defendant’s home with her family and the act occurred at a time when her father was in close proximity.
The offending in respect of the second count of the Information occurred a few months later in 1991 in a boat owned by the defendant at North Haven. The defendant instigated the act of sexual intercourse, and digitally penetrated the complainant’s vagina. The complainant’s family was present on the boat at that time.
It was the defence case that the incidents the subject of the two counts took place at a later time than alleged by the complainant. The defendant claimed that at the time of the incidents the complainant was aged between 16 and 17 years and that he believed on reasonable grounds that she was above the age of 17 years.
At trial the defendant admitted to having engaged in the subject acts of sexual intercourse with the complainant, and that she was, on both occasions, a person under the age of 17 years. However, the defendant pleaded not guilty in relation to both counts on the basis that he genuinely believed on reasonable grounds that the complainant was aged at or above 17 years. He relied on the defence set out in section 49(3) of the Criminal Law Consolidation Act 1935 (SA).[2] The jury convicted the defendant on both counts. As Beazley DCJ observed in his reasons for ruling:
[2] Section 49(3)-(5) of the Criminal Law Consolidation Act 1935 (SA) provides:
(3)A person who has sexual intercourse with a person under the age of seventeen years is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(4) It shall be a defence to a charge under subsection (3) to prove that—
(a)the person with whom the accused is alleged to have had sexual intercourse was, on the date on which the offence is alleged to have been committed, of or above the age of sixteen years; and
(b)     the accused—
(i)      was, on the date on which the offence is alleged to have been committed, under the age of seventeen years; or
(ii)     believed on reasonable grounds that the person with whom he is alleged to have had sexual intercourse was of or above the age of seventeen years.
(5)A person who, being in a position of authority in relation to a person under the age of 18 years, has sexual intercourse with that person is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
The jury’s verdicts decided the issues joined on the information. They clearly rejected the defence pursuant to s 49(4) of the Act. However, they did not decide, either expressly or by implication, all of the facts of possible relevance to sentencing. On the view most favourable to the accused the jury may have been satisfied on the balance of probabilities of all of the elements of the defence case save that it was not satisfied as to whether his genuine belief that the victim was then aged 17 years or more in respect of both counts was based on reasonable grounds. The jury’s verdict was however opaque. It may be that the jury was divided on factors otherwise relevant to sentencing.
There were alternative paths of reasoning which may have led the jury to reject the defence raised by the offender. It is possible that the jury saw no need at all to reject the defence raised by the offender. It is possible that the jury saw no need at all to consider the dates of the offences nor the ages of the victim in light of the way the trial was conducted. It may have determined that the offender had failed to satisfy them of the statutory defence because the offender’s belief could not have been made on reasonable grounds. I repeat the jury was considering the defendant’s claim to the statutory defence on the balance of probability. It was not strictly necessary for it to determine the age of the victim or the dates of the offences beyond reasonable doubt.
The jury’s verdict leaves open its findings as to the age or ages of the victim as at the date of the respective offences.
I have already referred to the view most favourable to the accused. If it did consider the ages of the victim, then other alternatives open to the jury were, inter alia:
(a)That the victim was aged 16 years at the date of each count, but that it did not accept that the offender genuinely believed that the victim was aged 17 years or over.
(b)That in respect of one or both counts, they were not satisfied as to precisely when the offence or offences took place, save that they were satisfied that one or both counts occurred prior to her 16^th birthday.
(c)That the victim’s version was accepted in its entirety – namely that she was aged 13 and 15 respectively as at the dates of the offences, to which she deposed, being Christmas Day in 1988 and 1990.
At the conclusion of his reasons, Beazley DCJ went on to say:
Ultimately and notwithstanding the clear evidence pointing to count 1 having occurred on a Christmas Day I cannot make that finding beyond reasonable doubt. The long delay which occurred before the offences were brought to the attention of the victim’s parents; my lack of satisfaction as to the date of the offence in count 2, which had also been said by the Prosecution witnesses to have occurred on a Christmas Day; and, the fact that there could not have been a significant delay between the offences, together mean that I have a reasonable doubt about the first offence having occurred on a Christmas Day. Accordingly I am left to sentence the offender on the basis that the first count occurred when the victim was aged 16 years in the second half of 1991. This finding in my opinion, is consistent with the verdict of the jury as to count 1.
I propose to sentence the offender on the basis most favourable to him in light of my findings, namely that the first offence occurred when the victim was aged 16 years and a few months in 1991, and that in respect of the second offence she was aged 16 years and 7 months in late 1991.
In my opinion these findings are consistent with the verdicts of the jury.
On 24 April 2008, the defendant was sentenced by another judge of the District Court for two counts of unlawful sexual intercourse. This offending took place some two years earlier than the offending the subject of the present appeal. It is relevant to set out the circumstances of that offending and its procedural history. It was a matter of significance in the sentencing approach of Beazley DCJ.
On 21 July 2006, the defendant was convicted by jury verdict of two counts of unlawful sexual intercourse in February 1989 involving another female complainant then aged 16 years. Those convictions were challenged on appeal to the Court of Criminal Appeal[3] and then in the High Court.[4] The arguments advanced in those appeals related to the validity of the jury verdicts in circumstances where the prosecution case at trial was that the offending occurred in February 1986, when the complainant was 13 years of age, and the defence case was that the same acts occurred, not in 1986 but in early 1989, when the complainant was 16 years of age and when the defendant believed on reasonable grounds, that she was of or above the age of 17 years. Both appeals were dismissed. The trial Judge, Herriman DCJ, was required to interpret the jury verdicts and reach a conclusion as to whether the offending occurred in 1986 or 1989. In his view, the jury had a reasonable doubt as to whether the offending in fact occurred in 1986. As a consequence, Herriman DCJ sentenced the defendant on the basis that the offences took place in 1989 when the complainant was aged 16 years.
[3] R v W, GC [2006] SASC 376.
[4] R v W, G C [2007] HCA 58.
The defendant was sentenced to a term imprisonment for two years. Herriman DCJ fixed a non-parole period of one year. He suspended the sentence upon the defendant entering into a bond in the sum of $2,000 to be of good behaviour for a period of three years.
When sentencing, with respect to the offending the subject of the present appeal, Beazley DCJ observed:
You had not been convicted prior to the subject offending. However, that prior offending is relevant in the sentencing process. You, of course, are not to be punished twice for that prior offending, however, the two offences for which I must sentence you cannot now be seen as some aberration or isolated offending. It would have been preferable had your previous offending and the subject offending been the subject of one sentencing package.
At the time of sentencing, the defendant was aged 59 years. He established his first general medical practice in 1983, and became a prominent medical practitioner. He had been a member of the RAAF Reserves since 1991, and had assisted in the skilled areas of neurosurgery and plastic surgery. In April 2007, the defendant was suspended from medical practice and was obliged to resign from his position in the Air Force. The defendant’s annual loss of income was been estimated at $750,000.
The defendant married in 2000 and had one child, a daughter, currently of the age of 8 years, from that marriage. He had a son from a previous relationship for whom he provides financial maintenance. At the time of sentencing, the defendant was the principal carer for his daughter and his aged and infirm mother.
As earlier observed, Beazley DCJ declined to exercise his discretion to suspend the sentence of imprisonment of two years and eight months. As this is the aspect of the sentence under challenge, it is appropriate to set out the relevant text of Beazley DCJ’s sentencing remarks:
I turn now to the question of whether the sentence of imprisonment that I have just imposed ought be suspended. That was the main thrust of the submissions of [defence counsel]. The intention of Parliament, as expressed in s.11 of the Sentencing Act and reinforced by the decisions of the Court of Criminal Appeal, is that an immediate custodial sentence ought not be imposed except as a last resort and only in the circumstances outlined in that section.
[Defence counsel] submitted that the every same factors which led the judge to impose a suspended sentence in respect of the 1989 conduct apply with equal force here. All of those matters are undoubtedly powerful indicators of good reason to suspend and they were clearly in the mind of that judge.
His Honour in exercising his discretion to suspend the sentence had before him a person of otherwise excellent character who had never previously offended. I am to sentence you for the subject offending occurring as it did three months apart and after the offending in 1989. Your subject offending therefore cannot be treated, as I said, as being isolated or some form of aberrant behaviour.
I am of course concerned that I should not readily upset the regime put in place by the judge on 24 April 2008. I will not speculate about what may have occurred had all of the offending conduct been the subject of one sentencing package.
In my opinion principles of personal and general deterrence are paramount considerations in sentencing you. Having taken into account all of the matters submitted by [defence counsel], including your long community service, the effects upon your family and the fact that you have turned your life around in the last 17 years, it is the continuing offending in 1991 which distinguishes this offending from that which occurred in 1989. Those matters of personal and general deterrence in my opinion must prevail over those otherwise powerful factors personal to you.
Your offending on the subject two occasions in 1991, involving a vulnerable girl, coupled with the age disparity, make it too serious for there to be anything other than an immediate custodial sentence. In those circumstances I cannot find sufficient good reason to suspend the sentence of imprisonment that I have just imposed.
The Appeal
On appeal there was no complaint about the head sentence or the non-parole period. However, it was submitted that Beazley DCJ erred in failing to exercise his discretion pursuant to section 38 of the Criminal Law (Sentencing) Act 1988 (SA) to suspend the sentence of imprisonment.
No explanation could be proffered by either counsel for the sentencing of the defendant by different judges. It was acknowledged that this was an unsatisfactory and regrettable state of affairs. We agree with the further comments of Kelly J on this topic.
As earlier observed, the submission on appeal was that Beazley DCJ erred in the exercise of his discretion with respect to the suspending of the sentence. It was contended that too much weight was given to the prior offending the subject of the sentence imposed by Herriman DCJ. It was pointed out that the convictions for that offending were recorded many years after the offending the subject of the present appeal, and, as such, did not represent a conviction prior to the present offending. It was further submitted that Herriman DCJ had put in place an appropriate sentence to reflect the criminality of the defendant’s conduct and, in particular, with a view to his long-term rehabilitation. It was said that the immediate custodial sentence imposed by Beazley DCJ disrupted the sentence imposed by Herriman DCJ. It was said that the community would be adequately protected by a suspended sentence in respect of the present offending and that there was no need for personal deterrence as the defendant had been found to have been rehabilitated. It was argued that the need for general deterrence was adequately addressed by the imposing of a term of imprisonment, albeit suspended.
Beazley DCJ accepted that the defendant had been rehabilitated on the basis that the defendant had not re-offended for some 17 years. Counsel for the defendant submitted that, in order to make this finding, Beazley DCJ must have been satisfied that there was no risk of the defendant re-offending. The arguments advanced with respect to rehabilitation involve consideration of the statutory sentencing factors set out in section 10 of the Sentencing Act.
It is apparent from the sentencing remarks that Beazley DCJ considered a suspension of a sentence of imprisonment to be inappropriate having regard to the gravity and circumstances of the offence. Beazley DCJ had before him a defendant who had been convicted of similar offences and had received a suspended sentence on an earlier occasion. As noted by Walters J in Wood v Samuels, the fact that an offence is repeated is very relevant to the issue of the suspension:[5]
The perceived seriousness and the intrinsic character of the particular offence, and any element of persistence, can serve as important restraints on the choice of a suspended sentence.
[5] Wood v Samuels (1974) 8 SASR 465 at 469 (Walters J).
Beazley DCJ exercised his power to impose the one sentence in respect of both counts pursuant to section 18A of the Sentencing Act. Counsel submitted that the sentence was disproportionate to the gravity of the offences for which the defendant was sentenced. Counsel contended that the defendant’s conduct was less serious on the basis that it was spontaneous and isolated rather than pre-meditated or contrived and that the defendant did not “groom” the complainant.
There were a number of aggravating factors with respect to the defendant’s offending. The familiarity and trust, which enabled the sexual offences to take place, was well-established. The parents of the complainant were in very close proximity when the offences occurred. The complainant was plied with alcohol against the wishes of her mother. The second incident took place at the complainant’s father’s 40^th birthday party. The offending was repeated and calculated. Beazley DCJ, pursuant to section 10 of the Sentencing Act, was entitled to take these matters into account.
It was submitted by counsel for the defendant that the complainant was not a patient of the defendant at the time of the offending. However, the complainant had previously been his patient and remained a patient of the practice of which he was a member. Significantly, the complainant first came to know the defendant through his medical practice. Although there was not strictly an active doctor-patient relationship at the time of the offending, the relationship had existed and formed and provided the background against which the offending occurred.

The defendant was aware of the complainant’s vulnerability and behavioural problems. He was aware that she had been expelled from her school. As a medical practitioner known to the complainant since the age of four years and who maintained a close friendship with the family, he was acutely aware of her vulnerability. The complainant carried feelings of shame and disgust into her adult life and this has impacted her relationships with others.
The defendant used his position of trust, respectability and prominence in the community to gain the confidence of the complainant and her parents. Medical practitioners are entrusted by parents with the care of children, many of whom are vulnerable young girls under the age of 18 years. The fact that the defendant has since led his life without offending and has made positive changes in his life does not justify a reduction in sentence. The gravity of the offending cannot be downplayed.
The defendant submitted that he had been punished by Beazley DCJ for the conduct the subject of the previous convictions, which Herriman DCJ found to have taken place in 1989. Attention was drawn to the following observation of Beazley DCJ:
I am of course concerned that I should not readily upset the regime put in place by the judge on 24 April 2008. I will not speculate about what may have occurred had all of the offending conduct been the subject of one sentencing package.
This submission should be rejected. The reference of Beazley DCJ to the defendant’s past criminal conduct was to distinguish the circumstances of the present conduct from an isolated episode or offence. In any event, as noted in the course of argument before this Court, it is not uncommon for a defendant to serve a suspended sentence and a custodial sentence concurrently.
Personal and general deterrence are significant aggravating factors in determining an appropriate sentence in the circumstances, which militate against the suspension of the sentence. As set out earlier, Beazley DCJ reasoned:
In my opinion principles of personal and general deterrence are paramount considerations in sentencing you. Having taken into account all of the matters submitted by [your Counsel], including your long community service, the effects upon your family and the fact that you have turned your life around in the last 17 years, it is the continuing offending in 1991 which distinguishes this present offending from that which occurred in 1989. Those matters of personal deterrence in my opinion must prevail over those otherwise powerful factors personal to you.
Your offending on the subject two occasions in 1991, involving a vulnerable girl, coupled with the age disparity, make it too serious for there to be other than an immediate custodial sentence. In those circumstances I cannot find sufficient good reason to suspend the sentence of imprisonment that I have just imposed.
It was submitted that Beazley DCJ fell into error in determining that personal and general deterrence were paramount considerations in sentencing the defendant. As observed earlier, the sentencing Judge accepted that the defendant had made significant steps towards his rehabilitation. However, rehabilitation is to be properly distinguished from personal deterrence as a sentencing consideration. In the words of the Director, the fact that the defendant was unlikely to re-offend, irrespective of any sentence passed, demonstrated that no process of rehabilitation needed to be fashioned, encouraged, or was likely to be destroyed by, a sentence of immediate custody.
The defendant was, at the time of sentencing, serving a suspended sentence for similar offending that had occurred two years earlier in respect of a different complainant. The need for deterrence in such cases is paramount notwithstanding the rehabilitation or previous good character of a defendant. As Bleby J observed in Bignell:[6]
Of course much can be and was said in favour of the appellant. A regrettable feature of so many sexual abuse cases of this nature that come before the courts is that defendants have impeccable records, are decent hardworking upright members of society, undertake substantial community service, and on the surface have a good healthy family and marital relationship. Furthermore, they almost invariably show genuine and deep remorse. It is because of all those common features that deterrence becomes such a significant element, and why custodial sentences, distasteful as they may be, are more often than not imposed. The fact that the appellant has good support systems, and still enjoys cordial relationships with the victims, speaks volumes for those who support him and stand by him, and says much for the Christian and forgiving attitude of his victims. He and they are extremely fortunate people, however that cannot detract from the seriousness of the offences, and the need to deter others of equal standing in the community who may be tempted to engage in similar conduct.
[6] Bignell v Police (Unreported, Supreme Court of South Australia, Civil, Bleby J, 11 December 1997); cited with approval in R v Smith [2007] SASC 64 (Gray J).
Counsel for the defendant referred to a number of authorities that discuss the approach to be taken by courts with respect to sentencing in circumstances where other offending has occurred. The observations of King CJ in R v McInerney are apposite:[7]
In my opinion the true rule is that a sentencing court may take into account in an appropriate way and for appropriate purposes, offences committed by an offender whether such offences were committed before or after the commission of the offence for which sentence is being passed and whether the convictions for such offences occurred before or after the commission of the offence for which sentence is being passed.
…
Offences committed prior to sentence for the offence under consideration may affect the sentence in two ways. They may diminish or abrogate any leniency by reason of good character. They may, moreover, lead to a greater sentence than would otherwise be imposed, although within the proper limits indicated by the facts of the immediate crime, for the purpose of personal deterrence; the prisoner's record may indicate that greater punishment is needed to protect the public by deterring him from further crime. Where the other offences have been committed before the commission of the immediate offence, their relevance is clear in the generality of cases. The offender has committed the offence not as a first offender but as a person whose character is affected by previous offending. He must be sentenced against the background of his record: Director of Public Prosecutions v. Ottewell[8] . The effect of the prior offences is more cogent if they have been the subject of conviction before the immediate offence. In such cases, the offender has committed the immediate offence notwithstanding the formal judgment and condemnation of the law in respect of the earlier offences and notwithstanding the warning as to the future which the conviction experience implies.
Where the other offences have been committed after the immediate offence, they are relevant only in special circumstances. The offender has not committed the immediate offence with his character already affected by the offences nor after the experience of conviction. In circumstances, however, in which the offender might otherwise have been given credit for having lived a law abiding life in the period between crime and sentence, it is relevant that he has not so lived but has committed an offence or offences in that period. In some circumstances, the nature of the subsequent offences may be such as to suggest that a greater degree of personal deterrence than would otherwise have been contemplated, is required. It seems to me that the circumstances in which offences subsequent to the commission of the offence for which sentence is being passed, are relevant to the sentence, are more restricted than those in which prior offences are relevant.
[7] R v McInerney (1986) 42 SASR 111 at 112-113 (King CJ).
[8] Director of Public Prosecutions v Ottewell (1968) 52 Cr App R 679 at 681.
Although no further offending had occurred on the part of the defendant for some 17 years since 1991, it is wholly inappropriate to say that an immediate custodial sentence should not be imposed in the circumstances. Every case is dependent on its facts. Criminal courts, through the sentencing process, have a duty to ensure that members of the professional community are adequately punished for exploiting the immaturity of young girls.
It is to the credit of the defendant that he has now taken the opportunity to make significant changes in his life with respect to rehabilitation. It is relevant to observe that this has not been evidenced by remorse or contrition. It is hoped that on his release he will again contribute to the broader community. Nonetheless, when all factors are taken into account, it cannot be said that Beazley DCJ imposed a sentence that was manifestly excessive. The circumstances of the offending are serious, bear striking similarities to the defendant’s previous offending, and warrant a term of immediate imprisonment.
In the present case, no demonstrable error has been shown on the part of Beazley DCJ. The considerations discussed above militate against suspending the sentence of imprisonment. The sentence imposed, and, more particularly, the non-parole period, were, in our view, merciful in the circumstances.
Conclusion
This appeal should be dismissed.
KELLY J:
I agree that the appeal should be dismissed for the reasons given by Gray and Sulan JJ.
I would add that the sentencing judge was placed in an invidious situation by the sentencing of the appellant in relation to other counts of unlawful sexual intercourse on 24 April 2008. As Gray and Sulan JJ have already noted this was an unsatisfactory and regrettable state of affairs. This was particularly so in the light of the fact that it was known during the sentencing submissions in the earlier matter that the trial of the appellant on these charges was scheduled to take place only two months later in June 2008. In my view, courts and prosecuting authorities should strive to ensure that, wherever possible, the sentencing of an offender on multiple offences where those multiple offences are so obviously related, should occur before the same judge.
In my view one of the consequences of the way in which this particular matter has unfolded has been that the appellant in the end received a sentence which might well be regarded as unduly lenient.