(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
29 February 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - TRESPASS TO LAND
This is an appeal against sentence.
The appellant was found guilty by a jury of one count of aggravated serious criminal trespass in a place of residence, contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’), and two counts of rape, contrary to s 48(1) of the CLCA, committed on 9 April 2018. Each offence carries a maximum penalty of life imprisonment.
On 9 April 2018, the appellant unlawfully entered the victim’s residence, where she lived with her two housemates, and raped her twice in her bedroom. The appellant was aged 23 years old at the time of the offending, and 26 years old at the time of sentence. He had relevant prior convictions, including for the offence of serious criminal trespass. He was on parole at the time of the offending.
The sentencing Judge imposed a single sentence of 15 years' imprisonment pursuant to s 26 of the Sentencing Act 2017 (SA) ('the Sentencing Act'). There was an unexpired balance of parole of 13 days, which was ordered to be served cumulatively upon this sentence, resulting in a final head sentence of 15 years and 13 days' imprisonment. As the appellant fell to be sentenced as a serious repeat offender, a non-parole period of 12 years and 11 days was fixed. The sentence was ordered to commence on 29 December 2020.
The sole ground of appeal is a complaint of manifest excess. An extension of time to file the notice of appeal, and permission to appeal, was granted on 19 December 2023.
Held, per the Court, dismissing the appeal:
1.While the sentence fell within the upper bounds of the permissible range, it was not manifestly excessive. It was an appropriately severe sentence given the gravity of the offending, and notwithstanding the appellant’s youth.
2.The offending called for a significant sentence to meet the demands of both general and personal deterrence, and to accord paramountcy to the protection of the safety of the community.
[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.
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Details
AGLC
Benfell v The King [2024] SASCA 16
Case
[2024] SASCA 16
Decision Date
CaseChat Overview and Summary
The appeal concerned the sentence imposed on the respondent, Benfell, by the Supreme Court of South Australia. Benfell appealed against a head sentence of 15 years imprisonment for offences including rape and sexual assault, and trespass to land.
The central legal issue before the Full Court of the Supreme Court of South Australia was whether the head sentence of 15 years imprisonment was manifestly excessive, thereby providing grounds for interference on appeal. The Court was required to consider the relevant factors and the purposes of sentencing in determining the appropriateness of the imposed sentence.
The Court reasoned that while the sentence was at the upper end of the permissible range, it was not manifestly excessive. The judges applied principles of sentencing that require consideration of the gravity of the offences, the need for punishment, deterrence, and rehabilitation. In this instance, the severity of the sexual offences, coupled with the other charges, justified the substantial head sentence.
Consequently, the Full Court dismissed the appeal, upholding the sentence imposed by the trial judge.
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
For those reasons, although at the upper end of the permissible range, we are satisfied that the head sentence of 15 years was not manifestly excessive. It was an appropriately severe sentence. Conclusion1.We dismiss the appeal.