DKJ v The Queen

[2020] SASCFC 23

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

DKJ v THE QUEEN

[2020] SASCFC 23

Judgment of The Court of Criminal Appeal (ex tempore)

(The Honourable Justice Lovell, The Honourable Justice Doyle and The Honourable Justice Hughes)

15 April 2020

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

The appellant pleaded guilty to one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant is his granddaughter. The appellant was sentenced to 12 years imprisonment, reduced by 30% for his early guilty plea, resulting in a head sentence of eight years, four months and 25 days with a non-parole period of five years.

The appellant appeals his sentence on the basis that it is manifestly excessive. The respondent concedes that the sentence is manifestly excessive.

Held (per curiam), allowing the appeal:

1. The sentence is manifestly excessive.

2. The sentence imposed by the District Court judge is set aside and the appellant resentenced.

Criminal Law Consolidation Act 1935 (SA) s 50(1), referred to.
R v D (1997) 69 SASR 413, considered.

DKJ v THE QUEEN
[2020] SASCFC 23

Court of Criminal Appeal:       Lovell, Doyle and Hughes JJ

1. THE COURT: The appellant pleaded guilty in the Magistrates Court to one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The offence carries a maximum penalty of life imprisonment. The offending involved two incidents of non-penetrative contact with the complainant. The appellant had no relevant prior convictions, cooperated with the police and demonstrated remorse. The appellant was sentenced by a District Court judge who adopted a notional starting point of 12 years imprisonment, reduced by 30% for the guilty plea, leading to a head sentence of eight years, four months and 25 days. The judge imposed a non-parole period of five years.

2. The appellant appeals the sentence on the ground that the sentence imposed is manifestly excessive. Kelly J granted permission to appeal on this ground on 28 January 2020.  The appeal is conceded by the prosecution.  For the reasons that follow we allow the appeal and resentence the appellant.

3. Between January 2014 and March 2016, the appellant engaged in two unlawful sexual acts, committed approximately one month apart, against his eight-year-old granddaughter. The complainant and her brother lived with the appellant and his wife pursuant to a kinship carer arrangement.

4. The first unlawful sexual act occurred shortly after the appellant assumed care of the children. After the complainant wet her bed, the appellant washed and redressed her and she joined the appellant and his wife in their bed.  The complainant fell asleep but again wet the bed.  After undressing the complainant a second time, the appellant rubbed his erect penis between her legs and about an inch from her vagina and he ejaculated. Despite having time to reflect on his conduct, he repeated that act in similar circumstances approximately one month later. The appellant told the complainant not to tell anyone and stated that “grandpa could end up in gaol and hang himself”. The appellant's wife was asleep next to the complainant on both occasions but did not wake up.

5. The offending came to light when the complainant's brother, who was also in the appellant's care, told the Department for Child Protection what had occurred. The social worker spoke to the complainant, who then disclosed the appellant's offending. The appellant was interviewed by police and he made full admissions; these admissions were the basis of his guilty plea entered in the Magistrates Court.

6. In sentencing the appellant, the sentencing judge stated that the starting point of 12 years was informed by the principles espoused in R v D.[1] Although the appellant's offending did not involve acts of unlawful sexual intercourse, the sentencing judge applied the standard from that case on the basis that the appellant's offending is “nonetheless an offence involving paedophilia”. As was conceded by the prosecution on appeal, the standard expounded in R v D[2] is specifically applicable to a course of offending involving unlawful sexual intercourse committed over time. The appellant's offending did not involve an act of unlawful sexual intercourse and was committed on two isolated occasions.  The sentencing judge, in our view, erred in applying the standard in R v D[3] when determining the appropriate starting point. The starting point of 12 years is clearly outside the range for offending of this type. As a result, the sentence is manifestly excessive and cannot stand. We resentence the appellant.

   [1] (1997) 69 SASR 413.

   [2] (1997) 69 SASR 413.

   [3] (1997) 69 SASR 413.

7. The appellant was born in 1952. The appellant was sexually abused by his step-father when he was seven years old. He left school when he was 14 so that he could gain employment to support his family. The appellant worked in a variety of jobs, including in construction and as a truck driver, until 1991 when he was involved in a work accident. As a result of that accident, the appellant was placed on a disability support pension. The appellant met his wife when he was 21 years old. She is aware of the offending but remains supportive. The appellant, through his counsel, expressed contrition and embarrassment for his offending. He acknowledged that he owed the complainant a duty of care and that he abused that duty. The appellant has some minor prior convictions but not for this type of offending.

8. In resentencing the appellant we have taken into consideration the complainant's victim impact statement. The offending has clearly had a profound impact on the complainant. She reports feeling anxious and insecure, she fears older men and has stopped going to school. The complainant has ceased dance, an activity she previously enjoyed, and has developed an eating disorder.

9. The offending is undoubtedly serious. We accept the prosecution's submission that the appellant's breach of trust was gross and occurred on two levels; as a grandparent and as the designated carer to a vulnerable child who had been removed from her father's care. Counsel referred to a number of cases that considered similar offending although they are of limited assistance. The primary purpose of sentencing the appellant is to protect the safety of the community. We must impose a sentence which seeks to deter the appellant and others from committing similar offences.

10. Taking into account all of the factors outlined above, had it not been for his early plea we would have imposed a sentence of eight years imprisonment. However, taking into account that the appellant is entitled to a reduction of up to 30% on account of his early plea, the final sentence is five years and eight months imprisonment. We fix a non-parole period of three years. The new sentence and non-parole period are to be backdated to commence on 3 June 2019 when the appellant was taken into custody.

    Orders

    1Appeal allowed.

    2The sentence imposed by the District Court judge is set aside.

    3The appellant is resentenced to a term of imprisonment of five years and eight months with a non-parole period of three years backdated to commence on 3 June 2019.

    4An intervention order is made in the same terms as the intervention order dated 24 June 2019.