Justice For All Australians

Supreme Court of South Australia Decisions

R v D (1997)

URL: http://www.austlii.edu.au/au/cases/sa/SASC/1997/6350.html

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)

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

DOYLE CJ, MILLHOUSE AND BLEBY JJ

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.

ADELAIDE, 22 August 1997 (hearing), 12 September 1997 (decision)

#DATE 12:9:1997

#ADD 22:9:1997

Appearances:

Appellant:

Counsel: Mr C J Kourakis

Solicitors: Guy Harley

Respondent:

Counsel: Ms R E Davey

Solicitors: DPP (SA)

Order: appeal allowed.

DOYLE CJ

This is an appeal
against sentence.

The appeal raises two issues. The first is the approach that should be
adopted to sentencing offenders
under s74 of the Criminal Law Consolidation
Act, 1935 ("the Act"). Subject to that, the appeal raises a question of the
correct approach to sentencing in the particular case, a case of serious
sexual offending against a child above the age of twelve years, the offender
being a member of the victim's family and the offending
involving multiple
offences.

As a result of my consideration of this case, and cases to which the court
was referred, I am
of the opinion that the case also raises for consideration
the question of the appropriate standard of punishment in cases like this
one.

Facts

In one sense, the facts of this case are routine for a case of its type.
Nevertheless, the facts of the
case illustrate the deeply disturbing nature of
the offence, but also its tragic aspects. I will state the facts quite
briefly.

The appellant was forty-one years of age when sentenced. He was a man of
apparently good character. In 1974 he had been convicted
of breaking and
entering and stealing. Apart from that, nothing adverse was alleged against
the appellant. Evidence was given by
a witness who was the appellant's
superior in his employment. His evidence was to the effect that the appellant
was a good and reliable
worker, and was well regarded by his employer and by
his fellow workers. The appellant had always had steady employment.

The appellant married the mother of the victim in December 1993. The victim
is a daughter of the appellant's wife, and the appellant's
step-daughter. She
was born in February 1981, and so was twelve years of age when her mother
married the appellant. In November 1994,
the appellant began to commit a
series of sexual offences involving the victim. The offences continued until
about the end of December
1994.

The appellant told a police officer that he could not explain why he began
to offend. He did say that it happened at
a time when he and his wife "...
were going through a very bad period emotionally and physically ...". The
appellant was working
long hours, including shiftwork, and rarely saw his
wife. He seemed to indicate that there were some strains in the marriage.

In brief, the circumstances of the offending were these. What began as
innocent back rubbing progressed to touching of the child
that constituted
indecent assault. Because of her age the child was, of course, unable to
consent as a matter of law. The assaults
involved the handling of her breasts.
The conduct then progressed to digital penetration of her vagina, masturbation
of the appellant
by the child (including ejaculation), fellatio involving
ejaculation and cunnilingus.

The appellant told the police that
he believed that the child was
consenting, but he also told the police that he had come to understand that
she was not actually willing
to participate in this behaviour. There was no
suggestion that the offences constituted rape.

In short, the appellant subjected
the child to a range of sexual acts on a
very frequent basis, almost daily it seems, over a two month period.

The offending
came to an end when the child went to stay with her natural
father, and then subsequently friends of the family were staying in the
house.
The lack of opportunity to offend interrupted the conduct, and the appellant
said that he then realised that what he was doing
was wrong. He stopped the
offending of his own volition. There is no reason to reject what he says about
that.

Not surprisingly,
the child's behaviour was affected by what was happening
to her. I have already alluded to the fact that there appear to have been
some
problems in the marriage. The appellant agreed to participate in a course of
family counselling. It is to the appellant's credit
that he participated in
this counselling, because he must have realised that it was highly likely that
his offending would come to
light as a result of that counselling. In due
course the child told a friend about the appellant's conduct, and his conduct
did come
to light, but it had ceased well before then. The appellant then left
the family home willingly. He seems to have done what he could
to assist his
family. A complaint was made to the police.

While the police were still investigating the matter, the appellant
took
the initiative and contacted them, and made full disclosure as best one can
tell.

There is every indication that the
appellant is genuinely remorseful, even
though the reasons for his offending remain unclear. He appears to have shown
genuine concern
for the welfare of the child.

The offending has had a dreadful effect on the child. She became depressed
and suicidal. Between
December 1995 and December 1996 she was admitted to
hospital on eighteen occasions, for a total of 185 days. She made some suicide
attempts, and also engaged in self-laceration. It is not necessary to say more
than that the child has been diagnosed as suffering
from a chronic fluctuating
depressive disorder. Her schooling has been seriously disrupted. At this
stage, her future is unclear.

When I referred to the tragic aspects of the case I had in mind the effect
of the offending on the child, the effect that
one can assume this must have
had on her mother, and the fact that the appellant has committed offences that
make inevitable a substantial
term of imprisonment for a man of otherwise good
character. Nevertheless, as I said a little earlier, in one sense this case is
routine.
It is a sad fact that the features of this case to which I have
referred appear quite regularly in other cases that come before the
court,
involving the sexual abuse of young children by family members or persons in
authority.

The sentencing judge gave
credit for the admissions that the appellant had
made, for his early plea, for his contrition and for his good character. He
emphasised
the importance of general deterrence. He said that but for these
matters he would have imposed a head sentence of 8 years' imprisonment.
He
imposed a sentence of 6 years' imprisonment, and fixed a non-parole period of
4 years 6 months. That sentence was imposed under
s74(7) of the Act.

It appears from these facts that the appellant committed multiple offences
of unlawful sexual intercourse with a person
of or above twelve years of age.
By s49(3) of the Act, the maximum penalty for such an offence is imprisonment
for a term of 7 years. In the case of a person under twelve years, the maximum
punishment for the same offence is life imprisonment: s49(1). The appellant
also committed indecent assaults on the child. The maximum penalty for that
offence is 8 years' imprisonment: s56. If the victim had been under the age of
twelve years, the maximum punishment would have been imprisonment for a term
of 10 years.

Legislation

The appellant pleaded guilty to a charge laid under s74 of the Act. That
section was enacted in 1994. The section provides as follows:

"74. (1) A person may be charged with and convicted
of the offence of
persistent sexual abuse of a child.

(2) Persistent sexual abuse of a child consists of a course of conduct
involving the commission of a sexual offence against a child on at least three
separate occasions (whether the offence is of the
same nature on each occasion
or differs from occasion to occasion).

(3) A person does not however commit the offence of persistent
sexual abuse
of a child unless the occasions on which a sexual offence is committed against
the child fall on at least three days.

(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.

(5) Before a jury returns a verdict that a defendant
is guilty of
persistent sexual abuse of a child -

(a) the jury must be satisfied beyond reasonable doubt that the evidence
establishes at least three separate incidents, falling on separate days,
between the time when the course of conduct is alleged to
have begun and when
it is alleged to have ended in which the defendant committed a sexual offence
against the child; and

(b) the jury must be agreed on the material facts of three such incidents
in which the defendant committed a sexual offence of a
nature described in the
charge (although they need not be agreed about the dates of the incidents, or
the order in which they occurred).

(6) The judge must warn a jury, before it retires to consider its verdict
on a charge of persistent sexual abuse of a child,
of the requirements of
subsection (5).

(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.

(8) A charge of persistent sexual abuse of a child subsumes all sexual
offences committed by the same person against
the same child during the period
of the alleged sexual abuse, and hence a person cannot be simultaneously
charged (either in the
same or in different instruments of charge) with
persistent sexual abuse of a child and a sexual offence alleged to have been
committed
against the same child during the period of the alleged persistent
sexual abuse.

(9) A person who has been tried and convicted
or acquitted on a charge of
persistent sexual abuse of a child may not be charged with a sexual offence
against the same child alleged
to have been committed against the same child
during the period over which the defendant was alleged to have committed
persistent
sexual abuse of the child.

(10) A prosecution on behalf of the Crown for persistent sexual abuse of a
child cannot be commenced
without the consent of the Director of Public
Prosecutions.

(11) In this section -

'child' means a person under the
age of sixteen years;

'sexual offence' means an offence against section 48, 49, 56, 58, 58A or
72, or an attempt to commit, or an assault with intent to commit, any of those
offences."

Sentencing for persistent sexual abuse
of a child

To decide whether the sentence in the present case is excessive, it is
first necessary to consider the approach
that should be taken to sentencing
under s74(7). That is the provision under which the judge sentenced the
appellant.

Counsel for the Director of Public Prosecutions made
the point that under
this provision the maximum sentence is imprisonment for life. She argued that
in the present case that was in
truth the maximum against which the punishment
for the appellant was to be fixed. Her argument was that the court had before
it not
just two or three representative counts, but in effect multiple counts
which attracted respectively maximum sentences of 8 years'
and 7 years'
imprisonment. She submitted that when one adds up the maximum sentences which
the individual offences attracted, the
total was such that the court was in
reality in the present case contemplating imprisonment for life as the
relevant maximum. Thus,
she did not deny that the statutory maxima fixed for
the particular offences committed were relevant. Her point was that a
distinction
was to be drawn between a case in which a court sentences for,
say, three so-called representative counts, while taking into account
the fact
that those three offences are part of a continuing course of conduct, and a
case under s74 where the court is in fact sentencing for all of the components
of the course of conduct.

If that submission is accepted
it means that a sentence imposed under s74
is likely to be heavier than a sentence for the same course of conduct if the
offender is convicted on a number of counts charged
under particular sections
of the Act, but sentenced on the basis that those counts are part of a course
of conduct involving similar behaviour.

In that context
counsel referred to the well known distinction between the
procedure to be adopted when it is desired that offences not charged should
be
taken into account, and the distinct practice of considering the commission of
crimes, not asked to be taken into account, when
determining whether or not to
extend leniency: see, for example, R v Reiner (1974) 8 SASR 102 at 105 Bray
CJ.

In effect,
as I understand her submission, it was the submission of counsel
for the Director that all offences that are part of the course of
conduct were
to be taken into account, and that the relevant maximum punishment is arrived
at by accumulating the maximum punishment
attributable to each separate
offence. On that basis, she argued, the maximum in the present case was a
number of years that exceeded
the likely life expectancy of the appellant.

On the other hand, counsel for the appellant argued that s74(7) did not
authorise or require the court to depart from the approach that it takes when
sentencing a person for what are often called
representative counts. The term
is well known, and is to be found in a number of decisions. However, as is
equally well known, the
term is a convenient if somewhat inaccurate term. As
applied these days it refers to the approach to which I referred when making
reference to R v Reiner (supra). That is, the court sentences an offender in
respect of a relatively small number of offences, but
does so on the basis
that those offences were not isolated offences, but part of a course of
conduct involving similar behaviour.
On that basis, the scope for extending
leniency is reduced. The uncharged offences that are part of the course of
conduct cannot
be used to increase the potential maximum punishment, which
maximum remains the accumulation of the maxima attracted by the charged
offences. The only way in which the uncharged offences can be used is to rely
upon them to refuse to extend the leniency that might
be extended if the
offences for which the offender is convicted were isolated offences. As Bray
CJ said in R v Reiner (supra at 105),
the distinction may seem metaphysical,
but as he also said it is "... a recognised and time honoured distinction for
all that."

The process of sentencing for a limited number of offences, on the basis
that they are part of a wider course of conduct,
has been regarded by this
court in the past as enabling the court adequately to take account of the
seriousness of a course of conduct
as a whole. The practice is well
established.

Does s74(7) have the effect that the sentence imposed under that provision
would normally be heavier than it would be under the existing practice,
because, as with sentences actually taken into account, the available maximum
has increased?

In my opinion the terms of s74 suggest that it is a provision concerned
with certain procedural difficulties presented by cases involving multiple
sexual offences
against children. In such cases it is often difficult to
identify the separate offences with sufficient particularity, in terms of
time
and circumstance, to meet the usual requirement of the law that adequate
particulars be given. Subsection (4) is directed at
that very problem.
Subsections (8) and (9) provide the protection necessary to a person who is
convicted on the basis of a charge
laid under s74.

There is nothing in the terms of s74, apart from subsection (7), to suggest
that Parliament intended that the courts should change the approach that they
have taken when
sentencing in respect of a course of conduct. The terms of
subsection (7), and the reference to life imprisonment in particular,
are
explicable on the basis that some of the sexual offences with which s74 deals
attract life imprisonment.

One would not expect a provision, which appears to be directed at what
might be called procedural
problems, to be intended to require a new approach
to sentencing. If the Director's submission is accepted, it would seem to
follow
that a person charged with three separate offences, and sentenced on
the basis that they were part of a course of conduct involving
similar
behaviour, might well receive a lesser penalty than a person charged with
persistent sexual abuse in respect of the same
course of conduct. Of course,
in subsection (7) Parliament has referred to "... a term of imprisonment
proportionate to the seriousness
of the offender's conduct ...". But, in the
context of s74, I incline to the view that that is a reference to the
seriousness of the conduct as it would be assessed by the court if so-called
representative counts were laid in accordance with established practice,
rather than to a new and different concept of seriousness.

The view which I favour gets some support from the Second Reading Speech on
the amendment that introduced s74. In the course of that speech (Hansard,
House of Assembly, 4 May 1994, p1005) the Minister said that the amendment was
introduced
to deal with the problem of adequacy of particulars "... where the
allegations involve a long period of multiple offending." It is
proper to have
regard to the speech to identify the purpose for which the law was changed,
and that purpose appears to have nothing
to do with sentences to be imposed.

Of course, the words of s74(7) remain. As counsel for the Director pointed
out, a person convicted under s74 is convicted on a charge which "...subsumes
all sexual offences committed by the same person against the same child during
the period
of the alleged sexual abuse ...": s74(8). There is an obvious
analogy to the process of taking uncharged offences into account.

Nevertheless, for the reasons that
I have indicated, I have come to the
conclusion that the reference in subsection (7) to the "seriousness of the
offender's conduct"
should be taken as a reference to the seriousness of that
conduct as it would have been assessed by the court, in accordance with
current practice, when dealing with distinct offences that are punished on the
basis that they are part of a course of conduct involving
like offences. In
short, I do not consider that s74 has brought about a change in the approach
to the sentencing of offenders in such cases.

In my opinion, the approach to be
taken under s74, in a case like the
present one, is this. The court should identify the different offences
involved and the maximum punishment that
they attract. In the present case the
offences are unlawful sexual intercourse with a child above the age of twelve
years, that attracts
a maximum punishment of 7 years' imprisonment, and
indecent assault on a child above the age of twelve years, that attracts a
maximum
punishment of 8 years' imprisonment. It is not necessary to identify
the number of offences committed with any precision, although
if that can be
done readily, there is no reason why it should not be done. An approach which
requires one to identify the number
of offences with precision, would simply
reintroduce the very problem at which s74 is aimed. It is sufficient to make
an assessment in a general way of the frequency of the offending. In my
opinion one should then
consider the likely sentence if the offender fell to
be sentenced under the provision that creates the relevant offence or
offences,
as distinct from under s74, and on the basis that the offender is
sentenced in respect of a number of representative offences, those offences
being treated
as offences which are part of a course of conduct involving
similar conduct.

In this way, the court will still have regard
to the duration of the
offending, the seriousness of the offences involved, and the frequency of the
offending. But the court will
not be accumulating a series of maxima produced
by multiplying the number of individual offences that can be identified by the
applicable
statutory maxima.

Of course, a person sentenced under s74 is protected against further
charges in respect of the same child and the same period of offending: s74(9).
But, in practical terms, a person sentenced on an information alleging a
number of representative counts had the same protection.
In my experience it
is unheard of for such a person to be charged later with further like offences
in respect of the same period.
Such a charge might well be stayed as an abuse
of the court's process.

Having said all that, I should add that I do not consider
it appropriate
to, nor am I attempting to, establish exhaustive guidelines for the imposition
of sentences under s74. I have confined myself to the particular issue that
arises in this case. That is, whether one is to accumulate the statutory
maximum
penalties applicable to each offence which can be identified as having
occurred during the relevant period.

There may be
other difficulties that will emerge under s74. All I intend to
decide at this stage is that the seriousness of the offender's conduct is
encompassed by sentencing the offender
as if the offender were convicted on
what are called representative counts, under the practice that existed before
s74 was enacted.

Was the sentence excessive?

In support of the appeal, counsel for the appellant identified certain
matters.
They are the relatively short duration of the offending (two months),
the fact that the appellant ceased offending of his own volition,
the
appellant's participation in family counselling knowing that his offending was
likely to be revealed, his co-operation with the
police and the indications of
genuine contrition. As will appear, the relatively short duration of the
offending and the fact that
the appellant ceased offending of his own volition
are circumstances that distinguish this case from others that have come before
the court.

Against these matters one has to consider the very serious nature of the
offending. The effects of the offending
on the child in question illustrate
the seriousness of the offence. Those effects show that offending over a
relatively short period
of time can be as catastrophic as more prolonged
offending. The effects of the offending on the victim in this case call for
particular
consideration because of the great harm done to the victim.

Counsel referred the court to several cases in which a head sentence
of 6
years' imprisonment had been seen as appropriate. He argued that these were
cases in which the offending was more serious. First,
some were cases which
involved unlawful sexual intercourse with a child under twelve years of age,
for which offence the maximum
punishment is imprisonment for life. Secondly,
in these cases the conduct had persisted for a longer period of time, usually
for
some years. Thirdly, the offending had ceased only when disclosed by the
victim. I agree that in those respects the cases, to which
I will now refer,
involved offending which was more serious than in the present case.

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.

In R v Lane (1995) 80 ACrimR 208 the offender was a teacher. The victim was
a young
male pupil. The offending began when he was nine years of age and
continued until he was sixteen years of age. It involved various
forms of
sexual intercourse. The offending ceased only when the victim revealed what
had been happening. The offender had no previous
convictions, and otherwise
was of good character. He co-operated with the police, and showed contrition.
The court increased the
sentence to a sentence of 6 years' imprisonment and
fixed a non-parole period of 4 years.

In R v Freer (unreported, Court
of Criminal Appeal, 20 March 1997 judgment
number S6087), the court dismissed an appeal by the offender against a head
sentence of
6 years' imprisonment and a non-parole period of 4 years 6 months.
The victim was the appellant's step-daughter. She was three years
and eleven
months of age when the offending began, and five years and four months when it
stopped. The offending involved various
forms of unlawful sexual intercourse.
The offender also pleaded guilty to an offence of indecent assault upon
another step-daughter.
Once again, the appellant had co-operated with the
police and had demonstrated contrition. It seems that he was the first to
disclose
the offending. However, at an earlier stage he had denied committing
any offence, but had continued thereafter to offend. The younger
child appears
to have suffered quite significantly, while the effect on the older child was
said not to have been so profound.

In R v Benier (unreported, Court of Criminal Appeal, 13 March 1997 judgment
number S6077) the appellant was convicted on three
counts of unlawful sexual
intercourse with a child above twelve years of age. The offending had occurred
over a period of about two
years. It was part of a course of conduct involving
various forms of sexual intercourse. On appeal, the sentence was reduced to
one
of 6 years' imprisonment, and a non-parole period of 3 years' 6 months.
The appellant had previous convictions, but none of them
were said to be
relevant to the offences in question. The appellant had been co-operative with
the police, and had expressed remorse
for his behaviour. In the course of
dealing with the appeal the court made the point that an offence involving a
child of less than
twelve years of age was a more serious offence, and should
attract a heavier punishment.

In R v Sangricoli (unreported, Court
of Criminal Appeal, 18 March 1997,
judgment number S6079) the appellant had pleaded guilty to five counts of
unlawful sexual intercourse
over a nine month period. The victim was the
appellant's step-daughter. She was aged between sixteen and seventeen at the
time of
the offences. But the appellant admitted that the offences were part
of a course of conduct that had begun when the victim was thirteen
years of
age. The offences had had a serious affect upon the victim. The appellant had
two previous convictions, but apparently they
were not relevant to the
offences in question. The appellant had pleaded guilty at an early stage. The
court dismissed an appeal
against a head sentence of 6 years and a non-parole
period of 3_ years, although it appears to have regarded the penalty as a
severe
one.

Those cases do indicate an approach on the part of this court to which we
should have regard. I agree that in the present
case there are circumstances
of mitigation that were not present in those cases. I have already identified
them. I make the point
in particular, that some of those cases involved
offending against children under twelve years of age.

I have come to the
conclusion that, in the light of those cases, the
sentence in the present case was too high. I consider that the unusually
powerful
mitigating circumstances in the present case require that the present
appellant receive a somewhat lesser sentence than was imposed
in those cases.
I would reduce the head sentence to one of 5 years' imprisonment, and would
fix a non-parole period of 3 years 6
months.

I should add that I do so with some reluctance, and only because it is
necessary to do so to maintain an appropriate
relationship between the
sentence in this case and the sentences imposed in the cases referred to.

Sentencing standards

This review of the decisions of this court leads me to think that in future
the sentences imposed for cases like this should
be increased for persons who
commit such offences in the future. By this I mean cases involving a course of
conduct including unlawful
sexual intercourse with a child, and committed by a
person in a position of trust and authority.

It is not necessary to repeat
what the court has said so often in the past
about such offences. I merely add this. They are offences that cause a feeling
of outrage
and revulsion in the community. The penalty must reflect that
feeling. They involve a serious breach of trust. As this case makes
clear,
such offences cause serious harm to the victim in many cases. There is every
likelihood that the effects of that harm will
be prolonged, and perhaps
lifelong. The courts must do what they can to protect children from such
conduct. Deterrence is an important
part of sentencing for an offence such as
this. Although reasons for the offending vary, and sometimes the offenders are
persons
who were themselves sexually abused as children, it seems clear that
such offenders are not usually persons who are unable to control
their sexual
instincts. While acknowledging that the punishment of offenders is only one
factor that may limit the incidence of this
offence, the courts must proceed
on the basis that punishment has a part to play in deterring offenders.

Offences such as
the present one have an insidious effect upon the
community, and that is also something to consider. They lead, and I suspect
are
already leading, to a loss of trust in the very persons upon whom we often
rely for the nurture of children, for their education,
and for guidance,
leadership and instruction for children. As our society becomes more aware of
the extent to which children are
subjected to sexual abuse, this insidious
effect is increasing.

It appears that the sexual abuse of children by persons in
a position of
trust is quite widespread. It may not be occurring more often than it did in
the past. It may well be that it is now
being detected more often than it was.
Be that as it may, the offences that are involved come before the courts with
disturbing frequency.
It is for those reasons that I consider that the court
should increase, to a moderate degree, the level of penalty imposed for such
offences.

I also consider, upon reflection, that there is a need to reflect more
clearly the fact that the maximum sentence
for unlawful sexual intercourse
with children under twelve years of age is life imprisonment. In some of the
cases referred to, no
real distinction seems to be drawn, in terms of penalty,
between such cases and cases of children over twelve years of age. That
distinction is not to be achieved by reducing the penalty for offences in the
latter category. To reduce sentences in such cases
would not be to maintain an
adequate standard of punishment. The distinction should be reflected by
increasing the penalty in the
case of offences involving children under twelve
years of age, so that such cases attract a heavier penalty than cases
involving
children over twelve years of age.

Of course, the court must also consider the circumstances of the offender.
As I have already
said, cases such as this are truly tragic, because the
offender is often a person of otherwise good character. The effects of
imprisonment
upon such a person are likely to be most adverse, but the need
remains for the court to do what it can to protect children against
such
persons.

It is not necessary for the court to give a warning before increasing the
range of penalties for a particular
type of offending: Poyner v The Queen
(1986) 60 ALJR 616; Yardley v Betts (1979) 22 SASR 108 at 113-114 King CJ; R v
Lewfatt [1993] NTSC 88; (1993) 70 ACrimR 66 at 68 Angel J and at 70 Priestley J. Nevertheless,
as the cases cited recognise, warnings do have a part to
play in the
sentencing process. I consider it appropriate that the heavier penalty should
be imposed in cases in which a conviction
is recorded hereafter or a plea of
guilty is entered hereafter. Although the heavier range of penalties could be
applied in the present
case, I consider that as a matter of fairness the
present case should be dealt with by reference to the standard reflected in
the
previously decided cases to which I have already referred.

In my opinion offences involving unlawful sexual intercourse with
children
under twelve years of age, when there are multiple offences committed over a
period of time, should attract as a starting
point a head sentence of about 12
years' imprisonment. In saying that I refer to a sentence imposed under s74(7)
of the Act and to a single sentence imposed under s18A of the Criminal Law
(Sentencing) Act. That starting point would be subject to reduction on account
of a plea of guilty, co-operation with the police, genuine contrition
and so
on. It is impossible to be precise in these matters, and I do not wish to be
taken as suggesting a precise figure. In an appropriate
case the starting
point might be higher or lower.

When the child in question is over twelve years of age, in my opinion the
starting point in such cases should be a head sentence of about 10 years'
imprisonment.

Under the approach that I propose,
the sentence of 6 years imposed upon
this appellant would have been an appropriate sentence, and the sentences
imposed in the cases
to which I have referred would all be somewhat higher.
There would be some differentiation as between those cases, because some of
them involved children under twelve years of age, and some of them did not.

I consider that the court should take this course
because of the
seriousness of the crime in question, and because of its prevalence. I realise
that there is not likely to be a significant
reduction in the frequency of
offending unless other strategies, outside the field of the courts, are
pursued. But I consider that
the courts should respond to the existing
situation in the manner suggested by me.

Conclusion

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.

MILLHOUSE J

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.

BLEBY J

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.

The approach to sentencing under s74 of the Act

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.

Sub-section (7) is an unusual provision. It reads:

"(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.

Whether the sentence was excessive

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 relatively short duration of the conduct.

- 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 appellant's previous good character.

- 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.

Sentencing
standards

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.

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