Burgoyne v The King - [2024] SASCA 61

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BURGOYNE v THE KING
[2024] SASCA 61
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
16 May 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO SUBSTITUTE VERDICT OR SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Appeal against sentence.

The appellant pleaded guilty to two counts of unlawful sexual intercourse, and two counts of production of child exploitation material. He was sentenced to an effective head sentence of four years and nine months, with a non-parole period of three years and two months.
In November 2021, the complainant moved to Port Lincoln to reside in a Department for Child Protection independent living facility. During January 2020 and November 2021, the complainant moved residences several times and had commenced illicit drug use.
The complainant met the appellant shortly after moving to Port Lincoln. They would meet regularly with another male and use methylamphetamine together. The appellant would inject the complainant with methylamphetamine.
At the time of the offending, the complainant was 15 years old, and the appellant was 45.

The four counts of offending took place on the same day. The first offending occurred in a car, being unlawful sexual intercourse with the appellant filming the sexual activity on the complainant’s phone. The second set of offending took place less than two hours later in a bedroom with the appellant again filming the activity on the complainant’s phone.
The core ground of appeal was that the learned sentencing judge was led into error, having been provided with the incorrect maximum penalties at sentencing submissions. The identified maximum penalty put forward by the prosecution was 15 years for each offence. While this reflected correctly ss 49(3) and 63(a) of the Criminal Law Consolidation Act 1935 (SA) at the time of sentencing, at the time of the offending the maximum applicable penalty was 10 years’ imprisonment for each count.
Held (by the Court) granting permission to appeal, allowing the appeal and resentencing the appellant:
1.The misapprehension of the maximum penalty for each offence was a material error.
2.It is appropriate to impose a single sentence pursuant to s 26 of the Sentencing Act 2017 (SA).
3.The appellant is resentenced to an effective a head sentence of four years, one month and 13 days, with a non-parole period of two years and eight months. Both the head sentence and non-parole period are backdated to commence on 12 February 2022.

Sentencing Act 2017 (SA) s 26; Criminal Law Consolidation Act 1935 (SA) ss 49(3), 63(a), referred to.
Kentwell v The Queen (2014) 252 CLR 601; Richardson v Police [2009] SASC 297; R v…

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.

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Details

Case: [2024] SASCA 61
Decision Date: 16 May 2024

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the applicant, Burgoyne, following his conviction for unlawful sexual intercourse with a girl under the age of 16. The applicant appealed against the severity of the sentence imposed by the sentencing judge.

The primary legal issue before the Full Court of the Supreme Court of South Australia was whether the sentence of 18 months imprisonment, with a non-parole period of 12 months, was manifestly excessive in the circumstances of the offending. The Court was required to consider the sentencing principles applicable to such offences and determine if the sentencing judge had erred in the exercise of their discretion.

The Court acknowledged the seriousness of the offence but found that the sentencing judge had placed undue weight on certain factors and had not adequately considered others, including the applicant's age, his remorse, and the fact that the offending was not part of a pattern of behaviour. The Court applied the principle that an appellate court should only interfere with a sentence if it is demonstrably wrong or unjust. In this instance, the Court concluded that the sentence was indeed manifestly excessive.

The Court ordered that the appeal be allowed and substituted the original sentence with a term of 12 months imprisonment, with a non-parole period of 6 months.

Orders