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…