(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
19 December 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Application for permission to appeal against sentence referred to the Court of Appeal for argument as on appeal.
The applicant pleaded guilty to maintaining an unlaw sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
The offending commenced when the complainant was 16 years and five months, and the appellant was 27 years. The appellant’s offending continued for around 7 months until the complainant turned 17. During the course of the offending, the complainant was impregnated and delivered triplets. The complainant and the appellant had two more children before their relationship came to an end after nine years.
The sentencing judge commenced with a sentence of imprisonment of seven years which, following a reduction of five percent for the plea of guilty, resulted in a head sentence of six years, seven months and 25 days. The sentencing judge fixed a non-parole period of three years and eight months.
The applicant sought permission to appeal against sentence on the ground that the sentence is manifestly excessive.
Held (the Court) granting permission to appeal but dismissing the appeal:
1.Whilst the parties were agreed that the sentencing standard in R v D (1997) 69 SASR 413 did not apply directly to the offending, there were features that suggested that it provided guidance. The offending involved the breach of an informal position of trust and the natural authority produced by a significant age disparity between the appellant and the complainant. The appellant’s personal circumstances were otherwise generally favourable. [79]-[81]
2.Although the starting point for sentence of imprisonment for seven years is high, and could have been lower, the sentence as a whole is not manifestly excessive given the lower than normal non-parole period. [96]
3.Recent decisions of the Court of Appeal reviewed, [45]-[47], [59]-[77] and observations made about the features relevant to determining the seriousness of child sexual abuse offending, including under s 50 of the CLCA, [78].
[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 Adam (a pseudonym) v The King
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AGLC
Adam (a pseudonym) v The King [2024] SASCA 149
Case
[2024] SASCA 149
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal against sentence brought by the Director of Public Prosecutions against a sentence imposed on the respondent, Adam (a pseudonym), for offences relating to the sexual abuse of a child. The appeal was heard by the Full Court of the Supreme Court of South Australia.
The legal issues before the Court were whether the sentence imposed by the sentencing judge was manifestly inadequate, and if so, what would be an appropriate and just sentence having regard to the circumstances of the offending and the offender. The Court was required to consider the principles of sentencing, including the need for proportionality and individualised justice, and to examine recent decisions of the Court of Appeal concerning similar offences.
The Court reiterated that sentencing involves a broad judicial discretion aimed at achieving justice in the particular case, with punishment being proportionate to the circumstances. While acknowledging the need for caution when comparing sentences due to the unique facts of each case, the Court reviewed two recent decisions. In *R v Butler*, a sentence of a good behaviour bond for maintaining an unlawful sexual relationship with a child and other sexual offences was found to be manifestly inadequate, and the offender was re-sentenced to three years’ imprisonment. In *R v Seymour*, the Court considered an appeal against a sentence for maintaining an unlawful sexual relationship with a child, where the offending involved a significant age disparity and exploitation of the complainant's vulnerability.
The provided text does not detail the final orders or outcome of Adam's appeal, but it outlines the principles and comparative cases considered by the Court in determining an appropriate sentence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
There can be no complaint about this process provided it is remembered that the point of determining an appropriate and just sentence is to impose a punishment that is proportionate to the particular circumstances of the offending and the offender. And, as has often been observed, there is nothing rigid about sentencing standards.[38] The need for individualised justice in a given case requires the imposition of a just sentence, representing the exercise of a broad judicial discretion concerned with doing justice in the particular case before the Court.[39] [38] R v King (1988) 48 SASR 555, 557-558 (Cox J); Edmonds (a pseudonym) v The Queen [2022] SASCA 11, [54]-[56] (Livesey P, Doyle and David JJA); Henry v The Queen (2022) 141 SASR 230, [137] (Doyle JA, with whom Livesey P and David JA agreed); Warner v The King (2022) 142 SASR 275, [80] (Livesey P).[39] Elias v The Queen (2013) 248 CLR 483, [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ).Recent decisions in the Court of Appeal When looking at the standards of sentence customarily observed concerning crimes of the type under consideration, it is helpful to consider a number of recent decisions which have come before the Court of Appeal. As always, it is necessary to have regard to other sentences imposed in other cases with caution and circumspection given the wide disparity in the circumstances of the offending and the offender in cases such as the present. In the case of R v Butler (A Pseudonym),[40] the Director was given permission to appeal (by a majority) against a sentence imposed for two counts of unlawful sexual intercourse contrary to s 49(3) of the CLCA. The Crown accepted those pleas in satisfaction of the Information which had included a count of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the CLCA. The sentencing judge had recorded a conviction and sentenced the defendant to a good behaviour bond without imposing any further penalty. This was found by the majority to be so manifestly inadequate that it warranted the grant of permission to appeal. The offending commenced in December 2015 and ended in September 2017. The charged offending occurred when the defendant was 23 years, and the complainant was a few weeks shy of her 17th birthday. The defendant had a number of favourable personal circumstances. The Court of Appeal re-sentenced the defendant to imprisonment for a period of three years with a non-parole period of 18 months.[40] R v Butler (A Pseudonym) [2022] SASCA 112 (David JA and Mazza AJA, Lovell JA dissenting). In R v Seymour (A Pseudonym),[41] the defendant pleaded guilty to one count of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the CLCA. The Court granted the Director permission to appeal against a sentence where the sentencing judge had adopted a starting point of six years’ imprisonment. The offending commenced when the complainant was 15 years and the defendant was 39 years in circumstances of considerable dependence and vulnerability in the complainant. The complainant and her sister had been living with a friend of their mother. That friend had been in an intimate relationship with the defendant. After the complainant became homeless, she moved in with the defendant. The offending commenced before the complainant turned 16 years, and continued for over 12 months. The first occasion on which the defendant and the complainant had sexual intercourse followed the defendant providing the complainant with cannabis and forcing himself upon her. [41] R v Seymour (A Pseudonym) [2024] SASCA 41 (Kourakis CJ, Bleby and David JJA).