ARTICLES REFERRING TO S V R - 1989 - HCA
To be expanded
INTERIM
REPORT ON INVESTIGATION INTO ALLEGED POLICE PROTECTION
The
nature of child sexual abuse, including paedophile activity, is that it is
often ongoing rather than a one-off event. When the abuse is disclosed,
especially if disclosure is delayed, it may be very difficult for a child to
remember exactly when the activities occurred, and what offences were committed
on each occasion. This presents legal problems. The High Court case of S v R
(1989) 89 ALJ 321 held that the prosecution has to identify particular
incidences of abuse so that the defendant is able to know exactly what the case
is against him so he can raise defences such as alibis (cf. Taylor, undated, p.
5).
http://www.icac.nsw.gov.au/files/html/Alleged_police_protection_of_paedophiles.htm
SENTENCING
FOR CHILD SEXUAL ASSAULT:
WITH
PARTICULAR EMPHASIS ON THE
LAW OF
NSW
Mr
Ivan
Potas
Course of conduct and representative charges
Many
child sexual assaults are not isolated or aberrant incidents but involve a
course of conduct
over extended periods of time, as described for example, in Burchell above.
Such
offences may involve only one victim or many victims. In order to avoid the
evidentiary
and substantive difficulties in cases of multiple sexual assault cases (see S v The Queen
(1989) 168 CLR 266 for example) some jurisdictions have introduced legislation
that requires proof of only three offences in cases where there has been a course of
conduct of illegal sexual behaviour over time. Some jurisdictions have an offence
of maintaining an unlawful sexual relationship
Section
125A of the Criminal Code of Tasmania provides a useful illustration. It
provides that a person who maintains a sexual relationship with a young person, to whom she is not married, is guilty of a crime. To be made out, the offence requires that the offender committed an unlawful act (which is further defined) on at least three occasions. A plea to this offence represents acknowledgment that three unlawful sexual acts have been committed.
Sentencing
under this provision was considered in DPP(Tas) v M [2005] 154 A Crim R 475. The
agreed facts were that the offender had sexually assaulted his step-daughter on a regular
basis over a 5 year period commencing from when she was 12 years old. The DPP
appealed on the basis that the sentencing judge had erred in restricting his sentences
to just three offences charged in the indictment.
In
considering this issue Slicer J referred to cases decided in other
jurisdictions,
including the South Australian case of R v D (1997) 96 A Crim R 364. In that case the prosecution submitted that the offences that were part of a course of conduct should also attract sentences, but this approach was resoundingly rejected by the Court.
In R v D, Doyle CJ expressed the view that an approach which required the sentencing court to identify the number of offences with precision would simply reintroduce the problem that the offence was intended to ameliorate. Instead, the court should identify the three offences, pay regard to the duration and frequency of offending and sentence on the basis that the offences were part of a course of conduct. The Chief Justice ruled out any notion that the approach should involve identifying each offence in the course of conduct and accumulate maximum penalties in respect of these
