DPP v T [2012] TASCCA 15

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Crown appeal alleging manifest inadequacy - Pleaded guilty to one count of maintaining a sexual relationship with a young person under the age of 17 years, eight counts of producing child exploitation material and two counts of possessing child exploitation material - Found guilty of three counts of rape - Whether sentence of seven years' imprisonment with parole eligibility after four years manifestly inadequate.

Criminal Law - Appeal and new trial - Appeal against sentence - Power of appellate court - Generally - Ability of court to make findings of fact.

Judgment Number: [2012] TASCCA 15

1. Sentence of seven years' imprisonment quashed and in substitution for it the respondent is sentenced to imprisonment for 12 years from 23 February 2012 and it is ordered that he is not to be eligible for parole until he has served seven years of the imprisonment.

1 The Director appealed against a sentence imposed by Porter J of seven years' imprisonment, and an order that there be no eligibility for parole for four years, on a sole ground of manifest inadequacy in all the circumstances.

2 Most of the facts stated in these reasons are drawn from the statements of the learned judge in his comments on passing sentence. However, some have also come from the evidence of the complainant, which his Honour accepted, and a few from watching parts of the recording made by the respondent of his commission of the crimes. I mention that because his counsel submitted it is not open to the Court to make findings of fact that were not made by the learned judge. No authority for that proposition was cited and it was contrary to the authority of R v Timbs unreported 11/1974 per Neasey J at 12, noted in Sentencing in Tasmania by Professor Warner, 2nd ed, at par15.220.

3 The sentence was imposed for 14 sexual crimes. The respondent pleaded guilty to 11 of them and was found guilty by a jury of three of them. The ones to which he pleaded guilty were one count of maintaining a sexual relationship with a young person under the age of 17 years, eight counts of producing child exploitation material and two counts of possessing child exploitation material. The jury found him guilty of three counts of rape. He was acquitted of one count of rape.

4 All the crimes related to the one complainant. The conduct represented by the crimes to which he pleaded guilty, other than the possession offences, occurred between February 2008, when she turned 14, and February 2011, when she turned 17. The three counts of rape occurred in the two month period that followed.

5 For about seven years up until she was 14 years old, he was in a relationship with her mother and so effectively he was her stepfather. After that relationship ended, he continued to be involved in her life and upbringing, particularly in relation to matters of discipline that arose.

6 The learned judge found that the crime of maintaining a sexual relationship with a young person under the age of 17 years was constituted by sexual acts committed by him on 19 different identified occasions over the three year period. The complainant stayed with him over many weekends throughout that time and on most, if not all, sexual activity took place, often on more than one occasion.

7 All of the sexual acts were without her consent. He was in a position of control over her. He was able to have his way with her as a consequence of violence, threats of violence and the use of his position as disciplinarian to overbear her will. She was continually under the influence of threats made by him and submitted to his demands. Some of the threats included that he would kill others and put recordings of what they were doing on the internet. Sex with him became part of her life and she felt she had no choice. Some of the sexual acts were acts of punishment.

8 He recorded some of the sexual activity on an audio and visual recorder. Approximately three hours of footage was found in his possession. It was graphic and depicted all of the forms of sexual activity engaged in which, the learned judge correctly found, amounted to further abuse. This Court viewed excerpts from the recorded footage. They showed occasions of vaginal, oral and anal rape. The complainant was crying out and complaining throughout much of them. It was disturbing and difficult to watch. At least part of his reason for recording the material was to ensure her continued compliance and silence. Of the 19 identified occasions on which sexual acts were committed on her before she turned 17, at least seven of them included acts recorded by him.

9 The identified occasions, and the three separate crimes of rape committed shortly after she turned 17, took place in the context of other regular, ongoing, non-consensual activity of the same nature over the period to which I referred.

10 The first identified occasion comprised an indecent assault and an aggravated sexual assault. The second involved a vaginal rape. She described it as like razor blades going in and out of her and she was crying. Thereafter, the sexual acts involved non-consensual mutual masturbation, vaginal intercourse, oral intercourse and anal intercourse. Episodes of sexual activity were prolonged, lasting up to an hour on occasions.

11 She described the first act of anal intercourse as occurring when she was crying and screaming. After it he told her that every time she told a lie it would happen again. The acts of anal intercourse were usually committed in the form of a punishment and he would tell her "you're getting it up your arse".

12 She described oral intercourse as "awful", his penis would smell disgusting. She would tell him that and sometimes he would wash it, but other times he would not do so and on those occasions she would cry and he would hold her head and force her to have oral intercourse. Sometimes she would be sick because of the smell. Often he ejaculated into her mouth.

13 He introduced alcohol, cannabis and sexual aids to the sexual relationship. She gave evidence of an occasion when he presented her with a number of dildos of various sizes and made her use them, starting with the smaller ones and leading up to the larger ones that hurt so much she was crying. He kept telling her to do it and told her that if she did not do it properly, it would happen again in the morning. She could not continue to do so because it was hurting too much and she was crying. As a consequence, in the form of a punishment, he had vaginal intercourse with her and then anal intercourse. The following morning he had vaginal intercourse with her.

14 On one occasion, after he had anal intercourse, he made her get into a bath and urinated over her.

15 Anal rapes occurred on three identified occasions for the maintaining crime and were recorded by him on a camcorder. Vaginal rapes occurred on 14 identified occasions for the maintaining crime and were recorded by him on three occasions. Oral rapes were recorded on three occasions. Two of the three rapes committed after she turned 17 were anal and the third was vaginal. On many of the identified occasions, she suffered pain, particularly with anal sex. Her evidence was that she was frequently very sore from having sex with him and had difficulty walking.

16 His conduct had a profound traumatic impact on her. As she put it, he stole crucial years of her life. She said she hated every second of every day she had. Even in her recent good times she squirmed in anguish at the thoughts of what occurred. She felt used and abused, vulnerable, angry, dirty and powerless, and even felt uncomfortable with males she trusted. She had times when she was simply unable to go to school or work. The learned judge found it impossible to predict the long-term future for her, but undoubtedly the crimes would have a profound effect on her for a very long time.

17 The respondent was 35 years old at the time of the sentence. He had a normal and happy upbringing, although his father died when he was a young teenager. He was close to his mother and two of his three siblings. He had a good work record. He had no prior convictions of any significance. Apart from those matters, there was little in his favour in mitigation of penalty. He pleaded guilty to most of the charges, but he had little choice having regard to the footage he had recorded of his offending behaviour. Further, his pleas did not avoid the need for the complainant to give evidence and she was required to watch all of the footage during the trial.

18 It was submitted by counsel for the Director that a single count of rape ordinarily attracts a sentence of imprisonment of three to four years and that a sentence of five years or more is appropriate for serious cases. Sentencing in Tasmania by Professor Warner, 2nd ed, par11.409; Director of Public Prosecutions v Farmer (2005) 157 A Crim R 150, [2005] TASSC 15, per Slicer J at par[7], and see Blow J at par[48]. It was submitted that the circumstances of each rape were such as to put the criminal conduct at the more serious end of the appropriate range for that crime. In that regard, counsel particularly referred to the crimes as amounting to significant breaches of quasi-parental trust; they amounted to a substantial course of non-consensual sexual crimes; the anal rapes were particularly serious for their inherent nature and for them being committed as a form of punishment for perceived misconduct; the oral rapes commonly involved ejaculation into her mouth; the vaginal rapes, and the anal rapes, were committed notwithstanding protestations from the complainant and at a time when he knew she was suffering pain; the unlawful sexual acts were committed in degrading circumstances; he used the threat of publishing the recorded material as a means to ensure her compliance and silence; and the victim impact was significant.

19 Ordinarily, when an offender is sentenced for the crime of maintaining a sexual relationship with a young person under the age of 17 years, the offender should suffer the same penalty as would have been imposed if the individual sexual acts constituting the crime had been charged as separate crimes. Director of Public Prosecutions v M (2005) 154 A Crim R 475, [2005] TASSC 14, per Evans J at par[38], with whom Blow J agreed on matters of principle; Director of Public Prosecutions v B (2009) 19 Tas R 14, [2009] TASSC 42, per Crawford CJ at pars[23 - 24], with whom Tennent and Porter JJ agreed.

20 It followed that the respondent was to be sentenced upon the basis that he raped the complainant on 21 occasions, and committed other sexual crimes which were not rape, in the course of regular non-consensual, sexual activity for a period extending for over three years.

21 Senior counsel for the respondent did not challenge what was submitted by counsel for the Director and she accepted that the sentence was a low one. However, she submitted that it was within an acceptable range for the crimes.

22 Counsel referred to a number of sentences imposed for multiple sexual offending, in some cases involving more than one victim.[1] To the sentences to which counsel referred may be added Brown, 4 April 1990, 10 years' imprisonment; Warren, 17 August 1995, 12 years total effective imprisonment; Bell v R unreported 35/1992, 12 years' imprisonment; and Watson and Curtis, 2 December 1986, 20 years' imprisonment and 14 years' imprisonment respectively. Counsel agreed that there is no recognised tariff for the crime of maintaining a sexual relationship with a young person under the age of 17 years, although among the cases to which they referred, sentences in excess of 8½ years' imprisonment were not common.

23 With respect, the sentence in this case was patently inadequate having regard to the number of times the respondent offended against the complainant and the gravity and depravity of his offending behaviour. Rapes on 21 different occasions alone demanded a much more severe sentence. Their nature and circumstances cried out for a much longer term of imprisonment by way of general and personal deterrence, retribution and denunciation. The gross breach of trust by the respondent and the harm he caused the complainant also demanded a much more severe sentence.

24 For these reasons I would allow the appeal and set aside the sentence of seven years' imprisonment. In its place I would sentence the respondent to imprisonment for 12 years from 23 February 2012 and order that he is not to be eligible for parole until he has served seven years of the imprisonment.

25 I agree with the reasons of Crawford CJ and the orders he proposes.

26 I have had the benefit of the draft reasons of his Honour the Chief Justice. I agree with those reasons and the outcome he proposes.

[1] JAC, 16 March 2007, 6 years' imprisonment; H, 11 July 2006, 7 years' imprisonment; S, 13 June 2006, 8 years' imprisonment; P, 20 September 2005, 6 years' imprisonment; D, 14 August 2003, 7 years' imprisonment; Evans, 6 April 1992, 8½ years' imprisonment; Director of Public Prosecutions v Farmer [2005] TASSC 15; (2005) 157 A Crim R 150, on a Crown appeal 10 years' imprisonment after regard was had to considerations favourable to an offender which were applicable to Crown appeals and which are no longer applicable because of the insertion of s402(4A) into the Criminal Code; Director of Public Prosecutions v M [2005] TASSC 14; (2005) 154 A Crim R 475, also on a Crown appeal, 6 years' imprisonment; R v England unreported A42/1989, also on a Crown appeal, 9 years' imprisonment; Attorney-General v B [2002] TASSC 63, also on a Crown appeal, 5½ years' imprisonment; W, 1 March 2010, 12 years' imprisonment; KGB, 14 August 2009, 12 years' imprisonment.