SRR v Tasmania [2023] TASCCA 6

Judgment Number: [2023] TASCCA 6

1. On 19 November 2022 the appellant was found guilty by a jury of the crime of persistent sexual abuse of a child contrary to s 125A of the Criminal Code. On 30 November 2022 the trial judge sentenced the appellant to 13 years' imprisonment with a non-parole period of eight years.
2. The appellant has appealed against the severity of the sentence imposed by the trial judge. He contends that the sentence constituted by the head sentence and the non-parole period is manifestly excessive.
3. The trial judge also ordered that the Registrar appointed under s 42 of the Community Protection (Offender Reporting) Act 2005 place the appellant's name on the Register under that Act and that the appellant comply with the reporting obligations under that Act for a period of 15 years from his release from prison. No challenge is made as to the appropriateness of that order.
4. The principles applicable to sentencing appeals, where the sole ground is an allegation that the sentence was manifestly excessive in all the circumstances are well settled. In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, Pearce J, with whom Blow CJ and Porter AJ agreed, summarised the principles relevant to appeals such as this at [8]-[9] as follows:

"[8] As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54, (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] JCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10 Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539.

[9] It is opportune to refer again to the oft quoted passage from the joint decision of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) [1998] HCA 14; (1988) 164 CLR 465 at 476:

'However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what an appropriate sentence is in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.'"

1. For the appellant to succeed it has to be shown that the sentencing discretion miscarried. It must be remembered that the sentencing judge's discretion is to be exercised within wide parameters taking into account the gravity of the criminal conduct, the circumstances of the offending and the circumstances of the individual offender (see Brennan v Tasmania [2022] TASCCA 7).
2. The facts concerning the appellant's offending which formed the basis of the sentencing judge's sentence are not challenged by the appellant, save for one discreet aspect. For the purpose of determining this appeal they can be briefly summarised as follows:
   • The appellant is the father of the complainant. The offending took place over a period of about ten months.
   • The complainant was aged between five and six at the relevant time; the appellant was aged between 36 and 37.
   • The conduct involved an appalling breach of trust and the depraved violation of a young child.
   • The offending continued until the complainant was removed from the appellant's care.
   • The sentencing judge found that six specific unlawful sexual acts occurred but that they were not isolated acts, but were rather part of an ongoing series of similar sexual acts, which included non-consensual touching and licking to the bottom and vagina, and non-consensual anal sexual intercourse. The six specific occasions identified involved the crimes of both indecent assault and three occasions of anal rape.
   • On the occasions that the appellant anally raped the complainant, he caused her physical pain and bleeding.
   • At least one of the incidents occurred when the appellant was in the presence of other family members, making the offending brazen.
   • As a result of the offending, the complainant suffered "intrusive recollections, bad dreams and concerns, and anxiety about her safety". The sentencing judge found that "because of what she has been through, there is a strong chance that she will encounter psychological difficulties to a far greater extent than she has to date. She is at risk of developing long lasting psychological symptoms, which could trouble her all her life and could be extremely incapacitating."
3. The one factual aspect the appellant raised concern with, in his submissions before the Court of Criminal Appeal, related to whether there was sufficient evidence to support the finding of the trial judge that the appellant committed anal rape upon the complainant. He correctly referred to the ambiguous medical evidence that was led on the trial. However, he conceded that there was direct evidence from the complainant in the trial that the appellant raped her in this way. It was open to the jury to accept that evidence and find that the accused had committed those rapes.
4. The jury only needed to be satisfied that the accused committed an unlawful sexual act on at least three of the alleged specified occasions, in order to find the accused guilty of the crime of persistent sexual abuse of a child: Criminal Code s 125A(3). The jury need not be in agreement about the particular occasions that had been proved: s 125A(4)(c). It was open to the jury or members of the jury to find more than three of the specific occasions proved beyond reasonable doubt. The verdict does not disclose whether the majority of the jury found more than three occasions established. Once a verdict is delivered, it is then up to the sentencing judge to make findings of fact relevant to the sentence that are consistent with the verdict. It was entirely open to the sentencing judge to find more than three specific occasions had occurred, and to make a finding of six specific occasions, provided he was satisfied of that beyond reasonable doubt. Such a finding was consistent with the jury's verdict of guilt.
5. The trial judge clearly accepted the evidence of the complainant, as he was entitled to do. He was clear in his factual findings. He said:

"I am satisfied beyond reasonable doubt that the acts of indecent assault and anal rape described by your daughter in relation to the numbered occasions all took place. I say that on the basis of her evidence, and of the corroborative evidence from her mother and her half-brother".

1. The approach taken by the trial judge in determining the factual basis for sentencing is unaffected by error.
2. The factors affecting the gravity of any crime of persistent sexual abuse of a child were enunciated in Director of Public Prosecutions v Harrington [2017] TASCCA 4. At [68]- [69] Pearce J (citing Clarkson v R; EJA v R [2011] VSCA 157 at [42]) noted the four primary factors which are necessary considerations in every case of persistent sexual abuse, as follows:

"[68] This appeal requires consideration of the factors relevant to the gravity of sexual crimes committed against children and the culpability of offenders. Clarkson v The Queen; EJA v The Queen [2011] VSCA 157, 212 A Crim R 72 is a joint judgment of five judges of the Victorian Court of Appeal. The Court said, at [42], that a sentencing court will need to consider at least the following matters:

(a) the relative ages of the offender and the complainant;

(b) whether the offender was in a position of trust or authority with respect to the complainant which facilitated the commission of the offence;

(c) the situation of the complainant, and the degree to which he or she was taken advantage of; and

(d) what the evidence shows about harm already suffered or likely to be suffered.

[69] Those comments were made in the context of the Court's rejection of the contention made in that appeal that consent mitigates the gravity of the offence and the offender's culpability in the case of a sexual crime against a child. There are many other relevant factors. The following list draws heavily on the list compiled by the Sentencing Advisory Council and set out in the Council's final report of August 2015, 'Sex Offence Sentencing'. It is not intended that the list be exhaustive. It includes the matters already referred to in Clarkson v The Queen, and is not in any particular order:

• the age of the child;
• the disparity in age between the offender and the child;
• initiation of contact by the offender;
• grooming behaviour;
• predatory, as opposed to opportunistic behaviour;
• the use of alcohol or drugs to loosen inhibitions;
• the use of other inducements;
• the nature of the sexual acts;
• the number of acts;
• the number of complainants;
• impact to the complainant and others;
• resort to actual or threatened physical force;
• resort to moral, social, emotional or other pressure or manipulation;
• resort to deception;
• the duration of the conduct;
• breach of trust;
• attempts to avoid disclosure by resort to threat, pressure, deception or manipulation;
• the degree to which resistance or distress is ignored or overcome;
• other consequences including bearing a child to the offender, pregnancy or abortion."

1. As has been noted in various cases it is always necessary to exercise caution in comparing any one case of the crime of persistent sexual abuse with another, because of the multiplicity and diversity of factors which may be operational in respect to any particular case. The variation in the type of sexual abuse, the conduct and frequency of that abuse, and the nature of the relationship are all factors which can vary markedly, making the crime one that is not amenable to standardisation.
2. Here, the sentencing judge noted:

"This is an unusually dreadful case of child sex abuse, involving many aggravating circumstances.

First of all, your victim was very young and therefore very vulnerable. As I have said, she was five years old when the sexual abuse started and six years old when it finished.

Secondly, the victim of your crimes was your daughter. Your crimes were incestuous.

Thirdly, your sexual crimes were unusually grave. You repeatedly anally raped your daughter. She was too young to consent to anything you did, and too young to understand the significance of your conduct. Your acts of anal rape caused pain and bleeding.

Fourthly, you groomed and manipulated your daughter. You repeatedly showed her videos of couples engaging in sexual acts, no doubt for the purpose of creating an impression that your sexual activities were quite normal. Also, you told your daughter that you would hurt her if she told anyone about what you were doing.

Fifthly, your sexual crimes involved extreme breaches of the trust placed in you by both your daughter and your wife.

Sixthly, the indecent assault in the lounge room on occasion (vi) was committed in the presence of one or more other family members.

Finally, and very significantly, there is the impact of your offending on your daughter and on other family members."

1. The sentencing judge also observed that there was an absence of common mitigating factors, save for the appellant's lack of relevant prior convictions. Of course, an absence of prior convictions is not uncommon in matters of this nature, and the length of time over which the abuse had been occurring, weighs against a conclusion that the absence of prior convictions is strongly mitigating. Moreover, the acts were not isolated, but rather occurred as part of an ongoing and sustained course of sexual abuse during the offending period. The appellant did not voluntarily desist from the offending behaviour. He made no significant admissions and was not entitled to the benefit of a discount which would have flowed from a plea of guilty. The appellant was not a youthful offender. The appellant had shown no remorse.
2. The appellant contends that he was "given three extra years on the sentence for pleading not guilty". That does not reflect what the trial judge did. The trial judge referred to the 13 year sentence and said that the appellant was not entitled to a discount received by those who plead guilty and said that the discount, if applicable, would have been "something like three years" because the complainant, her half-brother and her mother would have been spared the ordeal of giving evidence. No error is disclosed in such an approach. Indeed, it is consistent with incontrovertible authority.
3. The sentencing judge was correct to categorise the matter as "a particularly serious case of child sexual abuse". It required a sentence which denounced the conduct and deterred others from engaging in such conduct. The head sentence was a just and proportionate response to the seriousness of the conduct and level of criminality involved. No appealable error is identified.
4. The appellant also submits that the non-parole period of eight years is excessive and renders the sentence manifestly excessive. In a case where the head sentence is not manifestly excessive, and the non-parole period is under scrutiny, the correct approach is as set out in Groenewege v Tasmania [2013] TASCCA 7 at [56]- [57] :

"[56] I turn to the order in relation to parole eligibility. The question is whether the period for which an appellant is not eligible for parole makes the sentence manifestly excessive; 'sentence' in this context, being used in a broader sense. Under the Sentencing Act 1997 s 17, there is no parole eligibility unless it ordered that the offender is not eligible for parole before the expiration of a specified period. That period must be not less than one half of the head sentence. A non-parole period should be the minimum period that the sentencing judge determines that justice requires the prisoner must serve in prison, having regard to all the circumstances. The fixing of a parole eligibility period gives a sentencing judge the opportunity, when appropriate, to mitigate a penalty of imprisonment in favour of the rehabilitation of a prisoner through conditional freedom once the prisoner has served the minimum period the judge determines: Power v R [1974] HCA 26; (1974) 131 CLR 623 at 629; Carr v R [2002] TASSC 60; (2002) 11 Tas R 362 at 389 [96]; Richman v Tasmania [2011] TASCCA 18 at [47].

[57] Obviously, whether a non-parole period is appropriate has to be assessed not only on the basis of the whole of the circumstances of the case, but in the light of the length of the head sentence. There are several recent instances in which this Court has taken the view that although the particular head sentence was not shown to be manifestly excessive, the non-parole period made the sentence a manifestly excessive one. In Johnstone v Tasmania [2011] TASCCA 9, the non-parole period was set at 2½ years (a little over 70%) of a 3½ year term. The court concluded that having regard to mitigating circumstances, particularly the appellant's age, his general good character and lack of prior convictions, and attitude to offending after it was detected, the minimum period required to be served was out of proportion to moral culpability. The sentence was varied by a reduction of the non-parole period to 21 months."

Therefore, to demonstrate undefinable error of this kind the appellant must show that the sentence as a whole was unreasonable or plainly unjust by reference to all matters that were relevant to fixing the sentence and fixing the non-parole period. Whether the non-parole period is appropriate must be assessed not only on the basis of the whole of the circumstances of the case, but in the light of the head sentence.

1. It must be remembered that in setting the non-parole period, the sentencing judge's discretion is not fettered. In Connelly v Tasmania [2015] TASCCA 15, Wood J at [14] said:

"[14] It can be seen that the court's discretion is not fettered. The factors set out in the sub-paragraphs may be taken into account, but the section allows the court to have regard to other 'such matters as it considers necessary or appropriate'. The section is also non-prescriptive in allowing the sentencing court to allocate its own weighting to the matters in (a), (b) or (c), or indeed, any other matters. In any particular case there may be factors that weigh for or against parole, and the court is entrusted with a wide discretion in balancing these considerations and determining the appropriate outcome. The role of sentencing aims such as rehabilitation and deterrence also bear on the exercise of discretion. Again, such matters are left to the court's discretion. The provision allows for cases where the court may, because of the particular circumstances, not allow any opportunity to apply for parole."

1. While a consideration relevant to the setting of a non-parole period is the offender's prospects of rehabilitation, including their age and their past history of criminal offending, circumstances of particular gravity justify the imposition of lengthier non-parole periods. This is particularly so when the crime justifies the giving of prominence to denunciation and retribution, in that it re-asserts societal values and gives proper weight to the harm done to victims (Director of Public Prosecutions v NOP [2011] TASCCA 15 per Evans J at [41] cited in Connelly v Tasmania (above) Wood J at [23]-[24]).
2. In sentencing this crime, and setting the non-parole period, the trial judge was entitled to give prominence to the need for general deterrence and denunciation, and acknowledgement of the harm caused, given the grave breach of trust and appalling acts of abuse.
3. The overarching guiding principle in exercising the discretion to fix a non-parole period is that the non-parole period should be "the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence" (see Power v The Queen [1974] HCA 26, 131 CLR 623). The non-parole period ought to reflect the minimum period required to achieve the sentencing goals of prevention, punishment and deterrence.
4. In setting the non-parole period in this case, the sentencing judge was clearly minded to those considerations. He said:

"... this is an unusually dreadful case of child sexual abuse. It calls for a long prison sentence, but I will make provision for parole because of your lack of significant prior convictions. The non-parole period will not be a short one. It will be the shortest possible period that I think justice requires you to spend in prison."

It is evident from those comments that it was the gravity of the crimes which, in his view, warranted the outcome that the appellant should serve a period of no less than eight years in prison. It was within the proper exercise of the sentencing discretion to set a non-parole period in excess of the minimum.

1. Indeed, in matters of this nature it is not unusual for the non-parole period to be set in excess of the minimum. A review of sentences imposed for the crime of persistent sexual abuse of a young person reveals that it is common for the non-parole period to be set in excess of the minimum, and often as high as 65%. Recent examples of sentences for this crime where the non-parole period has been set in excess of the minimum period include: JDC (23 March 2023), NB (23 February 2023), SAT (29 November 2022), PJS (31 August 2021), DIJL (26 October 2020), BJF (17 November 2020), G (20 April 2023), KLS (14 February 2023).
2. There are of course considerable limitations associated with the comparison of non-parole periods for crimes of this nature, for the same reasons that the direct comparison of head sentences is of limited utility. The gravity of the crime is an important consideration. This is particularly so where the matter has proceeded to a trial. The denial of conduct and the lack of remorse weigh against a conclusion that there is capacity or preparedness to acknowledge wrongdoing and rehabilitate, and hence justify a sentence, and a non-parole period, that give prominence to the aims of denunciation, deterrence and retribution, over considerations of rehabilitation.
3. It is our view that the learned sentencing judge did not err in fixing the non-parole period at eight years. The non-parole period did not render the sentence manifestly excessive having regard to the nature of the crimes and the sentencing aims of punishment and denunciation.
4. For the above reasons, we dismiss the appeal.