R v R.A.L. [2000] NSWCCA 53

New South Wales Court of Criminal Appeal

CITATION : R v R.A.L. [2000] NSWCCA 53 FILE NUMBER(S) : CCA 60494/98 HEARING DATE(S) : Friday 25 February 2000 JUDGMENT DATE : 25 February 2000

PARTIES : Regina v R.A.L. JUDGMENT OF : Grove J at 1; Smart AJ at 21

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0513 LOWER COURT JUDICIAL Luland DCJ OFFICER :

COUNSEL : P.G. Berman (Crown) P.J.D. Hamill (Appellant) SOLICITORS : S.E. O'Connor (Crown) T.A. Murphy (Appellant) CATCHWORDS : Criminal Law and Procedure - Sentence - Extreme Acts of Sexual Assault - Seven Victims - Infant Victims - Delay in Detection of Offences - Age of Appellant CASES CITED: R. v Holyoak 1995 82 A Crim R 502 DECISION : Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL

60494/98

GROVE J SMART AJ

Friday 25 February 2000

REGINA v R.A.L.

JUDGMENT

1 GROVE J: This is an application for leave to appeal against the severity of sentence imposed by Luland DCJ following the appearance of the applicant and his pleas of guilty to some thirty counts in one indictment and two counts in a further indictment. Those counts were representative of criminal conduct of the applicant extending from 1953 until approximately 1978 to 1980. 2 The offences involved depredation of a sexual nature upon some seven victims, all of whom were either members of, or step members of, or de facto members of various families of the applicant over the years. 3 The applicant was born on 25 November 1922 and accordingly appeared for sentence when he had attained the age of seventy one years. As I have said, the counts presented against him were representative. 4 Facts were put before the learned sentencing Judge including, by consent, a statement which included a conclusion that each of the victims had suffered extreme emotional, psychological and physical torment that continued to affect their lives and the lives of their families. It further said that most of the victims have had the sexual and intimate relationships in their lives ruined because of the abuse they suffered at the hands of the accused. 5 His Honour imposed a number of sentences but the overall effective sentence was an encompassing term of a total of sixteen years divided into minimum and additional term components of twelve years and four years respectively. 6 There is no doubt that that could be described as a heavy sentence. Nevertheless, the criminality of the applicant was great; indeed, extreme. A number of facts relative to some of the representative counts have been extracted and it is appropriate in these brief remarks to recapitulate some of them to give substance to the observation that the criminality of the applicant was extreme. 7 One count involved anal intercourse with a step daughter. She bled heavily from the anus following the attack and was unable to go the toilet for several days because of the pain inflicted. Another count involved penile/vaginal intercourse with a step daughter aged eight. When he inserted his penis into her vagina she screamed. The applicant did not stop but placed his hand over her mouth and cut off her breathing until he had finished having intercourse with her. 8 In yet another count the victim was aged somewhere between seven and nine years when the applicant had anal intercourse with this male victim. He was his step son. After the attack the child had to crawl from the shed in which this offence took place. 9 Another count involved a victim who was a mere four years of age when the applicant had penile/vaginal intercourse with her. When she screamed in her agony at what was being done to her, he placed a pillow over her head, holding it there until he had finished. 10 There are counts which demonstrate that it was not only sexual depravity which the applicant forced upon his victims but non sexual violence as well. There is a count which involved kicking a victim aged about ten to twelve years at a time when the applicant was wearing steel capped boots. The victim was rendered unconscious and it was several months before this female victim was able to return to school. 11 Another count involved a female victim aged nine. In this case, also, the applicant continued with his offence despite the fact that the victim was screaming in pain at what he was doing to her. This victim was the applicant's natural daughter. 12 A number of counts involved a son whom I will refer to as D who was eight years of age when the applicant grabbed him by the hair and dragged him into a bathroom. He put his head down the toilet, another example of non sexual violence. 13 However D was also the object of the applicant's sexual depravity. On one occasion the applicant forced this boy, aged four, to engage in an act of sexual depravity with the family dog. It is not necessary to describe what happened on this occasion. With this victim there were acts of fellatio performed on and by the victim. 14 It is this victim who spoke to the applicant in circumstances where arrangements had been made through police for a recording of their conversation to take place. The transcript of that very long conversation was before the sentencing Judge. A reading of it led his Honour to this finding that he had formed the view that the applicant just expected everyone to forget it (it being the many crimes charged in the indictment) and let him get on with his life. 15 Mr Hamill of counsel who has appeared for the applicant in this appeal, has taken us to a number of parts of the transcript of that conversation in order to support his submission that that finding was not open to his Honour. I would reject that submission. 16 It does not seem necessary in the present circumstances to go through the exercise of simply extracting portions of the transcript and it suffices to say that a reading overall of that transcript shows that the finding of his Honour was well open to him. 17 The applicant's age is a factual circumstance which does not require elaboration. The submissions on behalf of the applicant were considerably focused on the delay which has occurred since the last offence in about 1978 to 1980 and the matters coming before the court in the latter part of the 1990s. His Honour came to the conclusion that this was not a case in which the delay would operate to mitigate the sentence which he had otherwise assessed as appropriate in all the circumstances. 18 It is a matter of observation that every case is different and, as was pointed out by Allen J in R v Holyoak 1995 82 A Crim R 502 there are extremes of circumstance concerning the potential effect of delay. There are some people who spend the time in effect waiting for justice to arrive and catch up, whereas there are others who are confident, as time goes on, that their misdeeds will not lead to any retribution. 19 The learned sentencing Judge found that this case fell into the latter category. In that finding I perceive no error. Undoubtedly the sentence, as I have already said, was severe but the criminality merited such a sentence. In the written submissions, challenge was made to his Honour's declining to find that there were special circumstances permitting a departure from the division of minimum and additional terms in accordance with section 5(2) of the Sentencing Act. It suffices, in my view, to say that I perceive no error in his Honour's judgment and, indeed, given the overall circumstances, I would add that I would come to that same conclusion myself. 20 Accordingly, I propose the following orders: that the application for leave to appeal be granted but the appeal be dismissed. 21 SMART AJ: I agree. The conduct of the applicant was so gross that the sentences imposed, although severe, were well within the sound exercise of discretion by the sentencing Judge. 22 GROVE J: The orders of the Court, therefore, will be as I have proposed. **********