DAVIES v The Queen (No 2)

[2021] SASCA 44

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

DAVIES v THE QUEEN (No 2)

[2021] SASCA 44

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)

14 May 2021

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

Application for permission to appeal against sentence.

After a trial by jury, the applicant was convicted of maintaining an unlawful sexual relationship with his stepdaughter when she was aged between five and seven years old.

The applicant was sentenced to 12 years imprisonment with a non-parole period of seven years and six months. He now appeals against the sentence on the ground that it is manifestly excessive. In particular, it was contended that the Judge failed to give some reduction for the applicant’s expression of remorse during a pretext conversation with the complainant and failed to adequately consider the applicant’s personal circumstances.

Held (by the Court), refusing permission to appeal:

1.      It was open for the sentencing Judge to conclude that there was no evidence of any genuine remorse on the part of the applicant.

2.      None of the personal circumstances of the applicant, nor any matters raised in argument, would have warranted the imposition of a lower head sentence or non-parole period.

Criminal Law Consolidation Act 1935 (SA) s 50(1), referred to.
R v D (1997) 69 SASR 413, considered.

DAVIES v THE QUEEN (No 2)
[2021] SASCA 44

Court of Appeal – Criminal:   Kelly P, Doyle and Bleby JJA

THE COURT (ex tempore):

1. The applicant in this matter seeks permission to appeal against a sentence imposed by a District Court Judge for one count of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).

2. The applicant argues that the head sentence of 12 years and the non-parole period of seven years and six months is manifestly excessive.

3. In support of that argument, the applicant submitted that the sentencing Judge should have given some reduction for the applicant’s expression of remorse during the pretext conversation with the complainant and has taken us to specific passages, which the applicant’s counsel argues is consistent with genuine remorse.

4. The applicant also complains that the sentencing Judge accorded no weight to the applicant’s ill health and the inordinate delay of at least 10 years between the offending and the date when the police were finally notified.

5. It is plain from the sentencing remarks that the sentencing Judge was aware of those matters. However, the applicant has not identified any error of fact or law which could attract the intervention of this Court.

6. The offending was grave in that the complainant was of very tender years, aged between five and seven when the offending commenced, and the offending only ended when the complainant turned 16 and was able to move into a caravan where she was able to lock the door to prevent the applicant from entering.  True it is, that he did not seek to thereafter, however the prolonged abuse of the complainant has had a devastating effect on her life.

7. Moreover, notwithstanding the contents of the pretext call, it was open, in our view, for the sentencing Judge to conclude that there was no evidence of any genuine remorse in that call on the part of the applicant, who thereafter pleaded not guilty at trial, denied the offending and gave an alternative explanation for the admissions during the pretext call at trial. The applicant stated that those admissions related to the use of violence and drug taking throughout the relationship, and not to sexual offending against the complainant.  The sentencing Judge was entitled to reject that explanation.

8. Regrettably, many offences of a sexual nature against children are not reported for many years.  It is an unfortunate, but not uncommon occurrence.

9. In summary, we consider that the facts of this case fall fairly and squarely within the standard set by R v D.[1]  Indeed, the facts might be regarded as a classic example of the very situation to which the Court was referring to in R v D.

   [1] (1997) 69 SASR 413.

10. None of the personal circumstances of the applicant, nor any of the matters raised in argument on his behalf, in our view, would have warranted the imposition of a lower head sentence or lower non-parole period.

11. For these reasons, the Court refuses permission to appeal.