Supreme Court of SA|1997-09-12|Before: Doyle CJ, Bleby JJ

For the reasons indicated, I would allow the appeal, set aside the sentence imposed by the District Court, substitute a sentence of 5 years' imprisonment, and in relation to that sentence fix a non-parole period of 3 years 6 months. The head sentence and the non-parole period are to commence from 4 April 1997.

We have to consider two points in this appeal - the construction of s74 of the Criminal Law Consolidation Act and, in the light of that construction, whether or not the penalty which the appellant was given is too severe.

Section 74 has been in effect only since 28 July 1994. So far as I know it has not been construed before by the Court of Criminal Appeal.

The section is headed "Persistent Sexual Abuse of a Child" and it allows for a person to be charged in relation to a course of sexual misconduct. We heard argument as to the meaning of the section from Mr Christopher Kourakis for the appellant and Miss Rosemary Davey for the respondent.

Until the section came into effect the Crown has had to use the device of representative counts when alleging a person guilty of persistent sexual misconduct: usually a count towards the beginning, one in the middle and the third towards the end of the misconduct - maybe each count alleging a different kind of misconduct: in short, the counts - not necessarily limited to three - have been representative of the time span and the kind of conduct. Now, if the misconduct alleged is either rape, unlawful sexual intercourse, indecent assault, an act or acts of gross indecency, for prurient purposes inciting or procuring the commission by a child of an indecent act etc, incest or one or other or several or all of these, there may be one charge under s74. A much more convenient way of proceeding.

The section makes it necessary to prove misconduct on at least three separate occasions on at least three different days. Subsection (4):-

"(4) A charge of persistent sexual abuse of a child - (a) must specify with reasonable particularity when the course of conduct alleged against the defendant began and when it ended; and

(b) must describe the general nature of the conduct alleged against the defendant and the nature of the sexual offences alleged to have been committed in the course of that conduct, but the charge need not state the dates on which the sexual offences were committed, the order in which the offences were committed, or differentiate the circumstances of commission of each offence."

I have no doubt that the intention of Parliament was merely to simplify the procedures when it is necessary to deal with a person alleged to have been guilty of one or more kinds of sexual offence over some time. There is no hint that any change in the law was intended, apart from the procedural change. The section is a convenience.

So with penalty, too. For some reason Parliament did not see fit to use the usual phrase in setting out the penalty "liable to imprisonment for life" (as the most serious of the offences comprehended by the section is rape for which that is the penalty

as it is also for unlawful sexual intercourse with a person under 12 - no less a maximum could be fixed). Instead, sub-section (7):-

"A person convicted of persistent sexual abuse of a child 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."

As the Courts always try to impose a penalty "proportionate to the seriousness of the offender's conduct" I cannot see that the subsection has any meaning other than to impose a maximum penalty of life imprisonment. Again there is no hint, neither in the section nor in the debates, that Parliament intended to increase maximum penalties for the various offences comprehended or any combination of them.

Therefore we should look at the admitted offending in this case and decide whether or not, in accordance with present accepted standards, the penalty is too heavy or not.

The appellant pleaded guilty to a course of conduct over two months which included (I go to the Particulars in the Information):-

"....having sexual intercourse with her, by inciting her to commit an indecent act and by indecently assaulting her, namely by inserting his finger into her vagina, by causing her to perform an act of fellatio upon him, by causing her to touch his penis and by touching her vagina, on at least three separate days."

In fact the appellant admitted repeated acts, occurring almost daily, as the victim alleged.

At the time of offending - the two months leading up to Christmas 1995 - the appellant was 38, the victim a 13 year old girl: the appellant had, about 12 months before, married her mother. He stood in loco parentis. The offending took place at home, usually while the mother was out and always without the mother's knowledge and without the victim's consent (which lack of consent she said she made plain to the appellant). The appellant's conduct was most disgraceful. Mr Kourakis acknowledged that the effect on the victim was "horrendous". She has spent 180 days in hospital since and has tried to commit suicide.

We begin then with a disgraceful course of sexual misconduct which had terrible effects on the victim.

There are several things in the appellant's favour. It was he who, when relationships in the family had become difficult (some months after his misconduct had ceased) suggested that they all go to counselling. This almost certainly led to the offending becoming known. The appellant himself went to the police and made a full confession. He pleaded guilty at the first opportunity. He has had counselling. He had voluntarily given up the misconduct (when he did, because of family arrangements at Christmas it would have been difficult to have continued it - but he did not resume it later when he could have). Apart from one irrelevant conviction when young, the appellant has had a good character. He has a good work record. Despite Ms Davey's arguments minimising the things in his favour, they weigh heavily with me.

Several previous cases considering similar offending were cited to us. No two cases are ever the same: there is no point in a precise comparison of one with another. Each case must be considered on its own facts. All other cases can do is to give a "feel" for the appropriate penalty. For that reason there is no point in my going through the other cases cited.

The other cases have been useful, though, in helping me come to a conclusion - and that is that the penalty of six years with a non parole period of four years and six months is far too severe.

I suggest allowing the appeal and reducing the penalty to four years imprisonment with a two year nine month non parole period.

The terms of s74 of the Criminal Law Consolidation Act 1935 ("the Act") and the tragic circumstances of this case have been adequately described by the Chief Justice and by Millhouse J, and I will not repeat them.

Sub-section (2) of s74 requires that persistent sexual abuse must consist of a course of conduct, and that course of conduct must involve the commission of a sexual offence on a child (defined by sub-s(11) as a person under the age of 16 years) on at least three separate occasions. For the purposes of the section the sexual offences comprising the course of conduct may be any one or more of the type of offences referred to in sub-s(11). Those offences cover a range of sexual behaviour for which varying maximum penalties are prescribed. The range of those maximum penalties is from two years to life. One can assume that Parliament regarded the more serious of those sexual offences as carrying the higher maximum penalties.

"(7) A person convicted of persistent sexual abuse of a child 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."

Several points need to be made about that sub-section. First, it uses the time honoured phrase in fixing maximum penalties that the offender "is liable" to be imprisoned..., thereby suggesting that it is prescribing a maximum period or periods. However, unlike the sections which specify the individual sexual offences which may comprise the course of conduct, the sub-section does not prescribe a blanket maximum penalty. It is for the court to determine the maximum, according to "the seriousness of the offender's conduct". The section does not say that the maximum penalty for any breach of the section is imprisonment for life, but that that maximum is reserved for "the most serious of cases". In making this observation I am not suggesting that the court must fix a notional maximum in each case and then impose an appropriate actual penalty. I merely draw attention to the absence of a typical maximum penalty prescription.

The second point to note about the sub-section is that the penalty is to be proportionate to the seriousness of the offender's conduct. It is not proportionate to the seriousness of the course of the conduct, although a course of conduct will need to be proved before the penalty can be imposed.

We can obtain some guidance as to the seriousness of the conduct by the respective levels of penalty which Parliament has prescribed for the individual offences which may be included in the course of conduct the subject of s74. The more serious conduct would be where the nature of the persistent abuse consists of acts which the law regards more seriously by reference to the standard of penalty prescribed for those particular acts.

The third point to be made is that the court cannot ignore the fact that it is sentencing for a course of conduct. Although three offences is the minimum number to constitute a course, the course will usually consist of multiple offences, sometimes over a period of years. One is therefore permitted to go above the maximum prescribed for one single offence of the type which is included in the course of conduct for which the sentence is imposed.

Other provisions of s74 ensure that particulars will need to be established of at least three individual offences occurring on separate days. In fixing an appropriate sentence, the court will therefore need to have regard to the seriousness of the offences particularised and the maximum penalties prescribed for those individual offences and the fact that they form part of a course of conduct. Subject to what is said below, it will also need to have regard to the seriousness of the other offences comprising the course of conduct where this is admitted or proved for the purpose of sentencing. In the case of a trial by jury it may not always be possible for the sentencing judge to make any definite findings as to the nature or extent of other conduct said to constitute the course. In those circumstances and when other conduct is not admitted for the purpose of sentencing, the court will have to rely more heavily on the seriousness of the charges particularised.

In the end, therefore, the process can be shown to be no different in substance from the process of sentencing described by the Chief Justice where a series of individual but perhaps "representative" offences are charged and proved or admitted.

Counsel for the Director of Public Prosecutions argued that in order to determine the appropriate maximum sentence for an offence under s74 one should aggregate the maximum sentences for all the events comprising the course of conduct. Based on that maximum one should then impose an appropriate sentence as if sentencing for a single offence, the maximum penalty for which is the aggregate so obtained. The difficulty with that argument is first that it requires a particularisation of each of the offences said to comprise the course. That is often impossible to do, and the section does not require it. It resurrects the very problems that s74 was designed to overcome. Furthermore, in most cases the aggregate so calculated would exceed the life expectancy of the defendant anyway. If that were the intention of Parliament, it would merely have prescribed that the maximum penalty for a breach of s74 would be life imprisonment without any qualification relating to proportionality to the seriousness of the conduct.

Even without resort to parliamentary debates, it is reasonably clear that the purpose of s74 was to overcome some severe limitations that existed on the successful prosecution of a number of child sexual offences, caused by the inability to give particulars as to time and events where there were many of them occurring many years prior to the laying of the charges. There is no suggestion that Parliament intended, by a side wind, thereby to increase the penalties where multiple offences were involved.

In fairness to Ms Davey, however, I did not take her to argue that as a result of the enactment of s74 the actual penalty range to be imposed by the court for offences of this nature involving a course of conduct should necessarily be increased, or that the "tariff", if one can be identified, should thereby change. Her argument was that where three representative offences are charged, each carrying a maximum of seven years' imprisonment, the maximum penalty that could be imposed in accordance with s18A of the Act would be twenty-one years. In a case under s74, it would not take many more offences forming part of the course of conduct to make that, in most cases, a defacto maximum of life imprisonment. As I understood her argument it was that a maximum of (say) twenty-one years was sufficiently close in practice to imprisonment for life to give sufficient scope for the exercise of the sentencing discretion under s18A to result in much the same answer. The danger in that approach, in my opinion, is that it is more likely to lead to sentencing error, and it ignores the fact that sub-s(7) itself does not prescribe a single maximum sentence, but prescribes grades of maximum according to the seriousness of the conduct.

For these reasons I agree that in cases like the present, the proper approach to be taken to sentencing under s74 of the Act is as described by the Chief Justice.

The appellant was the victim's stepfather. They lived in the same home. The victim was aged 13 at the time of the offences. The appellant was then aged 38. He was in a position of influence over and of trust in relation to the victim. Although the period of the conduct was short, the frequency was great and the offences serious. The consequences to the victim have been appalling, and cannot but have had a lasting effect on the whole of her life. It can be no excuse that a man is encouraged, as the appellant in this case apparently was, by the physical response of a post-pubescent teenager to his arousing actions. That apparently favourable physical response can conceal deep emotional reactions causing intense and long-term damage to the victim. Quite properly, the appellant's counsel did not seek comfort from that fact.

On the other hand, there were many factors undoubtedly favourable to the appellant. Principal among these were:

The voluntary cessation of the conduct well before it was reported, its immediate cessation being brought about by lack of opportunity, but its permanent cessation being caused by the realisation by the appellant of his wrongdoing.

The appellant's awareness, some months later, of the need for family counselling and himself arranging for it, that course of counselling having almost certainly brought the offences to light within a relatively short period.

The appellant's deep contrition, ready co-operation with the police and his early plea of guilty.

The appellant's acceptance, for the purposes of sentencing, of the allegations of the victim, even where he may have doubted some of them, in order to avoid further trauma to her.

The fact that the appellant has already undergone substantial mental anguish over his wrongdoing.

The appellant's voluntary undertaking of personal sexual counselling well before the involvement of the police.

All these factors weigh heavily in his favour, and he would appear to be a good candidate for rehabilitation. That factor must be recognised.

We were referred to a number of cases having some relevant bearing on what the sentence in this case should be. Those cases have been adequately summarised by the Chief Justice. Having regard to the standard which those cases appear to reflect, and when measured against that standard, in my opinion the sentence was excessive. The mitigating circumstances weigh heavily in the appellant's favour. I would reduce the head sentence to five years' imprisonment. Given his reasonably strong prospects of rehabilitation, I would fix a non-parole period of three years and six months.

I am a little uneasy about the reduction which I have proposed. Whilst it is necessary in the light of the standards revealed by a study of other cases, I too am concerned at the level of penalty which those cases reflect. The remarks which follow are, of course, confined to cases of this type, namely persistent sexual abuse of a child by a relative or close friend.

This type of offence is particularly insidious, being generally committed by persons in a position of powerful influence over the victim and persons in whom the victim can properly expect, and usually does have, complete trust. When that influence is abused and that trust is betrayed for selfish gratification, then courts must reflect what I believe to be the community's revulsion of that conduct.

Penalties must also bear some relationship to what Parliament has prescribed by way of maximum penalty for the particular offences concerned. For the purposes of penalty, Parliament has equated the seriousness of unlawful sexual intercourse with persons under 12 with that of rape, namely life imprisonment. For unlawful sexual intercourse with children aged 12 or over, the maximum penalty is seven years. Not all past sentences appear to have reflected that difference.

One of the principal factors governing the level of sentences for this type of offence must be deterrence. Severe penalties will not eliminate the practice, but, when coupled with adequate public awareness of the consequences of offending, they should have a significant effect. There is probably little to be gained by a statistical examination of the number of convictions for this type of offence. It would not surprise me if that showed a steady increase over recent years. However, that would not necessarily indicate an increase in prevalence of the conduct. It might reflect increased rates of detection. But even if that were so, that may well be because of greater community awareness of and openness in discussing such matters. With that openness has come a greater willingness to report allegations to persons in authority.

However, with that community awareness has grown an enhanced awareness of the devastating and lifelong effects that sexual abuse can have on children. This case is a chilling example of that. The social background of many offenders (not just sexual offenders) includes sexual abuse of them as children. The need to break that cycle is obvious.

Sentencing cannot be governed exclusively by the effect of the offence on the victim. It is but one of the many factors that must be taken into account under s10 of the Sentencing Act. For that purpose, s7 of the Act has, since 1988, required provision to the court, in most cases, of a victim impact statement. However, while the consequences of an individual case cannot dictate the sentence to the exclusion of other relevant factors, the general level of sentences can be, and I am sure is, governed by an awareness by the courts of the social evils generally associated with the particular type of offending. In the case of persistent sexual offences against children, the general levels of penalty have been set, I apprehend, according to the offensiveness to right thinking people of the acts concerned, and at a time when the long-term consequences to the victims were less understood and of even less significance in the sentencing process.

In my opinion, that justifies an upward review of the penalties generally applicable to such offences, particularly in relation to children under 12 years of age. This would, of necessity, have a flow-on effect to sentences in respect of offences concerning children over 12. I would therefore wish to join in the warning suggested by the Chief Justice that heavier penalties should be imposed for offences of this nature in respect of future convictions or pleas of guilty. Without that warning, however, it might be unfair on the present appellant to adopt that approach, and I would therefore stand by the proposed reduction in this case. For future cases I would endorse the approach suggested by the Chief Justice.

Criminal Law Consolidation Act 1935

R v D (appellant) No. SCCRM-97-109 Judgment No. 6350 Number of pages - 17 Criminal law (1997) 69 SASR 413 [1997] SASC 6350 (12 September 1997)

Criminal law - jurisdiction, practice and procedure - judgment and punishment - appeal against sentence - child sexual abuse - offence of persistent sexual abuse

proper approach to be taken to sentencing under s74(7) - consideration of appropriate standard of punishment - whether sentence excessive - appeal allowed - consideration of whether warning should be given before any departure made from sentencing standard generally imposed for particular offence. Criminal Law Consolidation Act, 1935s74, referred to. R v Reiner (1974) 8 SASR 102; R v Lewis (1993) 40 SASR 582; R v Lane (1995) 80 ACrimR 208; R v Freer (unreported, Court of Criminal Appeal, 20 March 1997, No.6087); R v Benier (unreported, Court of Criminal Appeal, 13 March 1997, No.6077); R v Sangricoli (unreported, Court of Criminal Appeal, 18 March 1997, No.6079); Poyner v The Queen (1986) 60 ALJR 616; Yardley v Betts (1979) 22 SASR 108; R v Lewfatt [1993] NTSC 88; (1993) 70 ACrimR 66, considered.

In R v Lewis [1993] SASC 4053; (1993) 60 SASR 582 this court increased a sentence to one of 8 years' imprisonment with a non-parole period of 6 years. The offender pleaded guilty and had shown contrition. The court indicated that but for the plea of guilty the head sentence would have been 12 years' imprisonment. This was a sentence which attracted remissions, and allowance must be made for that. The offender in that case was living with the victim's mother. The offending began when the victim was five years of age and continued for about five years. It ceased only as a result of her complaint. The offending involved various forms of sexual intercourse. The effects on the victim were said to be likely to be lifelong. The offender had some prior convictions, but they were said to be not particularly serious and none of them were for sexual matters.

R v D

At a glance

Court

Decision date

Before

Source

Judgment (52 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (10)

R v D (appellant) No. SCCRM-97-109 Judgment No. 6350 Number of pages - 17 Criminal law (1997) 69 SASR 413 [1997] SASC 6350 (12 September 1997)