A, Mr v Police - [2010] SASC 249

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
A, MR v POLICE
[2010] SASC 249
Judgment of The Honourable Justice Duggan
13 August 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - ELDERLY OFFENDER
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ILLNESS OR PHYSICAL DISABILITY
Appeal against sentence – appellant convicted of five separate counts of indecent assault – sentence of 21 months' imprisonment and non-parole period of 7 months imposed – whether sentence manifestly excessive – whether magistrate erred in failing to suspend the sentence – whether appropriate regard given to principle of totality, delay between commission of offences and laying of the charges, age and health of appellant and his rehabilitation – whether classification of offending as falling within middle to upper end of scale of seriousness erroneous.
HELD: appeal dismissed – relevant matters relating to delay properly taken into account – unlikely that magistrate did not take appellant's age into account – appellant’s health not a particularly significant factor for sentencing purposes – no error made in assessing gravity of offending – magistrate entitled to have regard to series of offences as serious – was appropriate to have regard to general deterrence – sentence within appropriate range for offences of this type – total sentence not disproportionate to the seriousness of the offending taken as a whole – not a crushing sentence – factors relevant to suspension of sentence properly taken into account – no error demonstrated in sentencing process – sentence not manifestly excessive.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Liddy (No 2) (2002) 84 SASR 231; R v E, AD (2005) 93 SASR 20, considered.

A, MR v POLICE
[2010] SASC 249
Magistrates Appeals: Criminal

DUGGAN J: Following a trial in the Adelaide Magistrates Court, the appellant was found guilty of five separate counts of indecent assault. The Magistrate who presided over the trial sentenced the appellant to 21 months’ imprisonment and fixed a non-parole period of seven months.
The appellant appeals against the sentence imposed. The grounds of appeal are that the sentence is manifestly excessive and that the Magistrate erred in failing to suspend the sentence. The appellant also argues that the Magistrate failed to have appropriate regard to the principle of totality, the delay between the commission of the offences and the laying of the charges, the age and health of the appellant and his rehabilitation since the commission of the offences.
Background
The offences were committed between 1980 and 1985. At that time the appellant was married to his first wife and resided with her and their children. All five offences…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A, Mr v Police

Details

AGLC: A, Mr v Police [2010] SASC 249
Case: [2010] SASC 249
Decision Date: 13 August 2010

CaseChat Overview and Summary

The appellant has appealed against the sentence imposed by the Magistrates Court, arguing that it was manifestly excessive and that the Magistrate erred in not suspending the sentence. The appellant contends that the Magistrate failed to have appropriate regard to the principle of totality, the delay between the commission of the offences and the laying of the charges, the appellant's age and health, and his rehabilitation since the commission of the offences.

The legal issues before the court were whether the sentence was manifestly excessive and whether the Magistrate erred in not suspending the sentence. The court had to consider the nature and circumstances of the offences, the appellant's age, health, and rehabilitation, and the principle of totality. The court also had to consider whether the delay between the commission of the offences and the laying of the charges was a relevant factor.

The court found that the Magistrate had considered the matters he had been asked to rely upon in suspending the sentence, and that the decision not to suspend the sentence was open to him in the exercise of his discretion. The court found that the Magistrate had taken into account the community involvement and considerable achievements of the appellant, as well as the absence of any other offending. The court found that no error had been demonstrated in the sentencing process and that the sentence was not manifestly excessive. The appeal was dismissed.

The court did not make any final orders.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals against the sentence imposed. The grounds of appeal are that the sentence is manifestly excessive and that the Magistrate erred in failing to suspend the sentence. The appellant also argues that the Magistrate failed to have appropriate regard to the principle of totality, the delay between the commission of the offences and the laying of the charges, the age and health of the appellant and his rehabilitation since the commission of the offences.Background The offences were committed between 1980 and 1985. At that time the appellant was married to his first wife and resided with her and their children. All five offences were committed at or near the family home and each of the five victims were known to the appellant through relationships they had with either his wife or daughter. The offences came to light after the appellant’s daughter, JA, made a report alleging that her father had repeatedly engaged in sexual intercourse with her when she was a young child. Following an investigation, the Director of Public Prosecutions advised against pursuing charges in relation to this alleged conduct and no proceedings were instituted. However, at about the same time the police commenced their investigations into the present offences. Information given to the police in the course of the investigation into the complaints by JA resulted in them enquiring into allegations of sexual misconduct against the five victims in the present case. Each of the victims was a friend of JA and her family. The offence charged in count 1 occurred between 1 January 1980 and 31 May 1980 and involved an indecent assault against EA. EA went to the same school as JA and was a close friend of hers. She frequently visited the appellant’s home. The Magistrate found that EA was approximately 16 years of age at the time of the offence. However as EA was born on 15 December 1964 she was actually between 15 and 15 and a half years of age at the time. The incident occurred late afternoon or early one evening when EA was visiting the appellant’s home. EA was standing in the dining room of the home when suddenly the appellant stood behind her. He reached over her shoulder, grabbed her right breast and simultaneously rubbed between her legs in the area of her vagina. He attempted to kiss her on the back of the neck and pressed his groin into her lower back. EA managed to break away from the appellant. She said she was in a state of panic and confusion when this occurred. The victim of the offending charged in count 2 is TM. The offence occurred in 1980. At the time of the offending TM was 17 years of age. TM’s mother was friendly with the appellant’s wife and this is how she came to spend time at the appellant’s home. TM was staying at the appellant’s home on the day of the offending. She had been at a birthday party the night before and upon returning to the appellant’s house in the morning went to sleep in JA’s bedroom. The appellant entered the bedroom and placed his hand on her right breast. TM stated that the appellant placed his hand under the bed sheet and that the contact was “skin to skin.”. At this point she awoke and said something like “What do you think you’re doing?” The appellant responded by saying “I’m just waking you up” and left the bedroom.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, the Magistrate had regard to those matters which he had been asked to rely upon in suspending the sentence. The decision not to suspend was open to him in the exercise of his discretion.Conclusion The appellant was found guilty of committing indecent acts on the victims. It is clear that none of the victims consented to his approaches and that the appellant’s actions resulted in lasting distress for them. The repetitive nature of the offending is a particularly aggravating factor. The Magistrate was required to take into account the community involvement and considerable achievements of the appellant. It was also important to have regard to the absence of any other offending. However, these matters were taken into account and, in particular, they resulted in a low non‑parole period. No error has been demonstrated in the sentencing process and, in my view, the sentence is not manifestly excessive. The appeal will be dismissed.

Ratio Decidendi

Legal Principle Established

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