R v Y, DB

[2007] SASC 58

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Leave to Appeal)

R v Y, DB

[2007] SASC 58

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice David)

2 March 2007

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

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE

Leave to appeal against sentence - applicant convicted of 15 counts of unlawful sexual intercourse against three victims aged over 12 years - whether sentence and non-parole period manifestly excessive - whether sentencing judge gave adequate weight to applicant's age - whether sentencing judge gave too much emphasis to age difference between applicant and victims - whether sentencing judge erred by assuming that certain consequences were suffered by victims' ethnic community - held, leave to appeal granted, appeal allowed - sentencing judge gave inadequate weight to applicant's age - applicant re-sentenced to 10 years imprisonment with a non-parole period of 6 years.

Criminal Law Consolidation Act 1935 s 49(3), s 56, referred to.

R v Y, DB
[2007] SASC 58

Court of Criminal Appeal:  Doyle CJ, Gray and David JJ

1. DOYLE CJ.          I would grant leave to appeal and allow the appeal. I agree with the orders proposed by David J. There is nothing that I wish to add to his reasons.

2. GRAY J.                I agree with the orders proposed by David J. I agree with his reasons.

3. DAVID J.               The applicant was charged on Information with 17 counts of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (“the Act”), and one count of indecent assault, contrary to s 56 of the Act. The victims were three boys who, at the time of the offending, were aged between 13 and almost 16 years and whom I will refer to as “V1”, “V2” and “V3”.

4. After a trial by jury in the District Court, the applicant was convicted of 15 counts of unlawful sexual intercourse. The jury was unable to reach a verdict in regard to the other two counts of unlawful sexual intercourse, and the charge of indecent assault was dismissed by direction of the trial judge.

5. The applicant appealed to this Court against his conviction in relation to the 15 counts of unlawful sexual intercourse, but the conviction was upheld in an earlier decision of this Court.

6. The applicant was sentenced to a term of imprisonment of 14 years with a non-parole period of eight years. That sentence was to commence at the expiration of a sentence of four years imprisonment which the applicant was serving in relation to similar offences committed at about the same time as the matters currently before the Court. The non-parole period for those earlier offences was one year and six months. The sentencing judge extended the non‑parole period to nine years and six months as a result of the present offences.

7. The applicant sought leave to appeal against sentence from a single judge of this Court, but leave was refused. The applicant now applies to this Court for leave to appeal against sentence.

   Grounds of Appeal

8. The grounds of appeal are that:

   ·both the head sentence and the non‑parole period were manifestly excessive;

   ·the sentencing judge failed to give adequate weight to the applicant’s age;

   ·the sentencing judge placed too much emphasis on the age difference between the applicant and his victims; and

   ·the sentencing judge erred in assuming that certain consequences would be suffered by an ethnic community as a result of the offences relating to two of the victims who were members of that community.

   Background Facts

9. The applicant was convicted of two counts of unlawful sexual intercourse upon V1, relating to acts of giving and receiving fellatio. These acts occurred in January 2003, when V1 was aged 14 years and 6 months. At the time of the offending the applicant was 18 years of age.

10. The applicant first met V1 through a church group. The offences took place at the applicant’s house before they were both to be picked up to attend a Christian concert. There was evidence at trial that for about a week prior to the offending the applicant had been grooming V1 for what was to happen by playing games involving his penis.

11. The applicant was also convicted of nine counts of unlawful sexual intercourse upon V2, including seven acts of fellatio, one count of giving anal sexual intercourse and one count of receiving anal sexual intercourse. This offending occurred between 1 April 2002 and 23 June 2004 and related to three discrete occasions. In evidence V2 told the jury that similar sexual behaviour had occurred between the two of them approximately 50 times and was not confined to the offences charged before the court.

12. V2 was born overseas and came to Australia with his mother, two older brothers and younger sister when he was six or seven years of age. The applicant met V2 through a support group that existed in Adelaide for members of his ethnic community.

13. The applicant was convicted of four counts of unlawful sexual intercourse upon V3. V3 is the older brother of V2. Three counts related to acts of fellatio and one count involved anal sexual intercourse. These offences occurred on two discrete occasions between 1 September and 11 November 2003, when V3 was 15 years of age and the applicant was 19 years of age.

14. The applicant also met V3 through the support group for members of his ethnic community in Adelaide and introduced him to games which led to the sexual behaviour for which the applicant was convicted.

15. After a trial in December 2005, the applicant was convicted of one count of attempted unlawful sexual intercourse with a child under 12 years of age, contrary to s 49(1) and s 270A of the Act, and two counts of unlawful sexual intercourse with a child under 12 years of age, contrary to s 49(1) of the Act. Those offences occurred between September 2002 and November 2003 and related to a female victim. The applicant was sentenced to a term of imprisonment of four years with a non-parole period of one year and six months.

16. As can be seen from the dates of the prior offending and the offending presently before the Court, there is some overlapping in relation to the dates. In fact the applicant was on bail in relation to the offending against V1 when he committed the offences against the other three victims. Other features of aggravation were the fact that he used community organisations as a means of cultivating his victims. The offences were also committed over a significant period of time and, in relation to V2 especially, were part of a continuous course of behaviour.

    The Sentence

17. The victims in the matters presently before the Court were aged between 13 and almost 16 years of age when the offending occurred, and the applicant was aged between 17 and almost 20 years of age. As each of the three victims was over the age of 12 years, the maximum penalty for each of the offences at the time of the offending was seven years.

18. The sentencing judge imposed notional sentences in relation to each of the three victims. In relation to the two counts of offending against V1 the sentencing judge imposed a single notional sentence of imprisonment for two years. For the nine counts of offending against V2 the sentencing judge imposed a single notional sentence of imprisonment for 12 years. In relation to the four counts of offending against V3 the sentencing judge imposed a single notional sentence of imprisonment for five years. The sentencing judge then accumulated the notional sentences, reaching a total of 19 years as a starting point. He then considered the question of totality and in his sentencing remarks said:

    I consider that would be a too crushing sentence for a young man who is not yet 22 years of age. I also take into account your earlier sentence of imprisonment for four years for your offending against [V4].

    I reduce that accumulated sentence, taking into account the earlier sentence, to imprisonment for 14 years.

    I impose a single sentence for all your offending against [V1], [V2] and [V3] of imprisonment for a period of 14 years.

    I indicate that I would have fixed a non-parole period of imprisonment for eight years on that head sentence.

    The sentencing judge then said that there was no good reason to suspend that sentence and ordered that the head sentence commence at the expiration of the head sentence of four years which the applicant was currently serving and which was imposed on 13 December 2005. The sentencing judge then reviewed and extended the non-parole period of one year and six months imposed in relation to the earlier offending to allow for the non-parole period of eight years which he imposed in relation to the current offending, making a total non-parole period of nine years and six months to commence from 13 December 2005.

    Argument on Appeal

19. The applicant argues that the head sentence and the non-parole period are manifestly excessive and, in particular, argues that the sentencing judge failed to give adequate weight to the applicant’s age at the time of the offending. The applicant also argues that the sentencing judge placed too much weight on the age difference between the applicant and the three victims. In his remarks the sentencing judge said:

    You were yourself a young man when you committed these offences against these three boys. There is a possibility that your early offending against [V2] was when you were not an adult. There was, however, a relevantly significant age difference between you and the three boys when you committed all offences.

    In the absence of any psychological or other evidence as to your offending I can only sentence you on the basis of the jury’s verdicts, the aggravating features of your offending to which I have already referred and to which I now refer, and your personal circumstances about which I was told during sentencing submissions.

    Your offending was committed against one boy whom you met in the context of a [church] group, whilst your other offending involved boys whom you met through your [ethnic] cultural community. They were the younger brothers of a boy who was your age. You used a child’s game to introduce each of your victims to sexual acts, which I can only assume were for your sexual gratification. You used gifts and promises to encourage them to participate in those acts. In the case of the [V2 and V3] boys you ultimately had anal sexual intercourse with each of them. Your offending against [V2], the youngest of the three brothers, was committed over a long period of time and involved many acts of sexual intercourse.

    The applicant also argues that the sentencing judge erred when he said:

    I think that I am entitled to assume that your offending against the [V1 and V2] boys has had awful consequences, not only to the boys, but to the [ethnic cultural] community involved.

    Your offending against V1 has had awful consequences to him and to his family. His schooling suffered and his nature changed. He attended counselling for over a year. His parents have had to face their own demons as a result of your conduct with their young son.

20. The offending was serious. The sentencing judge accurately encapsulated that in his sentencing remarks when he said:

    It is hard to comprehend that before you have had your 22^nd birthday you have been convicted of sexual abuse of four children, including a young girl under 12 years of age. Three of those children were members of a [ethnic community] group with you, whilst the fourth you met through a youth group run by [a church group].

    I do not consider that the judge erred in making remarks about his assumptions as to the effect the offending would have on two of the victims and their ethnic community. I also find that the judge has not erred in the way that he referred and gave weight to the difference between the ages of the victims and the applicant. Although there are many cases where there are far greater age differences between the perpetrator and the victim, nevertheless, the age difference in the present case was significant and exacerbated by the aggravating factor that the applicant had, in a sense, groomed all three victims for what was to come.

21. However, I am concerned that the sentencing judge did not give enough consideration and weight in his sentence to the age of the applicant. There is no doubt these were serious offences. The applicant was 21 years of age when sentenced, and was aged between 17 years and 20 years of age when these offences were committed. Although he had been previously sentenced to four years imprisonment in relation to unlawful sexual behaviour towards a young female, that behaviour could not be considered to be a previous conviction. It is to be noted that the applicant has been punished quite separately for that behaviour, and there is no merging of the sentences.

22. I am of the view that an ultimate sentence of 14 years imprisonment with a non-parole period of eight years with a head sentence cumulative upon the term he is already serving and the non-parole period being increased to nine years and six months does not make enough allowance for his youth. For that reason, I find that the sentencing process has miscarried.

    Conclusion

23. I would grant leave to appeal and allow the appeal. In my view the notional head sentence of two years for the offences against V1 is appropriate. However a notional term of 12 years for the offending against V2, serious as it was, does not make enough allowance for the youth of the applicant. I consider that a notional term of imprisonment of eight years would have been more appropriate. Similarly a notional term of five years imprisonment for the offending against V3 suffers from the same defect and I consider that a notional term of imprisonment of four years would be more appropriate. Accumulating the notional sentences in relation to the offending against the three victims, the notional starting point would then be 14 years. Making allowance for totality, I would reduce the accumulated notional head sentence to 10 years and set a non‑parole period of six years. The head sentence is to be added to the sentence of imprisonment for four years which the appellant is currently serving and which was imposed on 13 December 2005, and the non-parole period of one year and six calendar months imposed on 13 December 2005 is to be reviewed and extended to a term of seven years and six calendar months.