AIO v The Queen

[2019] SASCFC 121

Supreme Court of South Australia

(Court of Criminal Appeal)

AIO v THE QUEEN

[2019] SASCFC 121

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Doyle and The Honourable Auxiliary Justice David)

8 October 2019

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

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS

Appeal against sentence following the appellant’s early guilty plea to basic offence of indecent assault. The appellant contends that the sentence imposed is manifestly excessive and that the sentencing Judge had regard to extraneous matters which resulted in a sentence which was disproportionate to the offending.

Held, per David AJ (Peek J agreeing), dismissing the appeal:

1. The seriousness of the offending cannot be seen in isolation of the appellant’s antecedents, prospects of rehabilitation and risk of re-offending.

2. The sentence was not manifestly excessive.

Held, per Doyle J, allowing the appeal:

1. The sentence, arrived at by reference to a notional starting point of 4 years, was in all the circumstances manifestly excessive.

Criminal Law Consolidation Act 1935 (SA) s 56(1); Criminal Law (Sentencing) Act 1988 (SA) s 23(2); Sentencing Act 2017 (SA) ss 3, 57, referred to.

AIO v THE QUEEN
[2019] SASCFC 121

Court of Criminal Appeal:       Peek and Doyle JJ and David AJ

1. PEEK J:     I have read the draft reasons of Doyle J and David AJ. While I accept that this is a heavy sentence, I do not consider that the sentence was beyond the discretionary range available to the Judge, particularly having regard to the clearly demonstrated need for personal deterrence in this case. 

2. I add that the Judge went to a great deal of trouble in considering this matter, publishing a detailed Judgment (principally for the benefit of the lawyers before her) as well as the shorter sentencing remarks in terms attuned to the ear of the appellant, which she read to him on sentencing. It is made clear in each of those respective documents that “what would in isolation appear to be a disproportionate sentence for a minor indecent assault is the appropriate sentence in this case” and that it “may seem on its own to be a very high sentence, but in your case I have decided it is necessary”.

3. I would dismiss the appeal substantially for the reasons given by David AJ.

4. DOYLE J:   I have had the benefit of reading the draft reasons of David AJ. While I agree with, and gratefully adopt, his Honour’s summary of the facts and circumstances relevant to the disposition of the appeal I have reached a different conclusion as to the outcome.

5. Consideration of whether a sentence is manifestly excessive involves consideration of the entire range of circumstances relevant to the sentencing decision, including the maximum penalty for the relevant offence, and the detail of the circumstances of the offending and the offender. But ultimately the conclusion reached is a matter of impression that often…