Evans v The Queen - [2019] SASCFC 145

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
EVANS v THE QUEEN
[2019] SASCFC 145
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Justice Parker)
21 November 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence – where appellant pleaded guilty to one count of unlawful sexual intercourse with a person under the age of 17 – where appellant sentenced to imprisonment for two years, five months and 13 days with a non-parole period of 16 months – where Judge declined to suspend or order sentence be served on home detention.
Whether the sentence is manifestly excessive – whether the length of the sentence is outside of the permissible range – whether the sentence ought to have been suspended - whether the sentencing Judge mischaracterised the objective seriousness of the offending by failing to properly consider the appellant’s mental impairment and the fact that the complainant had consented to the offending – whether the Judge erred by focusing on the complainant’s intoxication and on the age disparity between appellant and the complainant, and by characterising the offending as a 'breach of relationship' between the appellant and the complainant.
Held, per Kelly and Parker JJ (Stanley J agreeing), dismissing the appeal:
1.       There was no need for the Judge to do more than take the appellant’s mental health issues into account as part of his personal circumstances as relevant to his prospects for rehabilitation.
2.       There was never any suggestion that the complainant had consented. The basis of the plea did not turn a non-consensual act into a consensual one as any potentially mitigating factor in sentencing.
3. Age disparity was a relevant consideration. One of the purposes of s 49(3) of the Criminal Law Consolidation Act 1935 (SA) is to protect young people from their own immature inclinations.
4.       The complainant’s intoxication was a relevant consideration.
5.       The Judge was required to characterise the nature of the relationship between the appellant and the complainant. He did so correctly and no error has been demonstrated.
6.       The sentence was not outside of the reasonable range available to the sentencing Judge. The appellant has not demonstrated any error which would justify the intervention of this Court.
Criminal Law Consolidation Act 1935 (SA) s 49(3); Sentencing Act 2017 (SA) s 11(1)(b), s 11(1)(f), s 96(3), referred to.
R v Monks [2019] SASCFC 47; Clarkson v R (2011) 32 VR 361; R v D (1997) 69 SASR 413, applied.
R v Jackson [2014] SASCFC 101; R v Mackay [2019] SASCFC 45, distinguished.
R v Brace [2011] SASCFC 54, discussed.

EVANS v THE QUEEN
[2019] SASCFC 145
Court of Criminal Appeal: Kelly, Stanley and Parker JJ
KELLY AND PARKER JJ.
Introduction

This is an appeal against a sentence imposed by a District Court Judge for one count of unlawful sexual intercourse with…

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.

Continue reading Evans v The Queen

Details

AGLC: Evans v The Queen [2019] SASCFC 145
Case: [2019] SASCFC 145
Decision Date: 21 November 2019

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, who had pleaded guilty to unlawful sexual intercourse with a person under the age of 17. The appellant was sentenced to two years, five months, and 13 days imprisonment, with a non-parole period of 16 months. The sentencing judge had declined to suspend the sentence or order it to be served by way of home detention. The appeal was heard by Kelly, Stanley, and Parker JJ.

The central legal issues before the court were whether the sentence was manifestly excessive, whether its length fell outside the permissible range, and whether it ought to have been suspended. Specifically, the appellant argued that the sentencing judge had mischaracterised the objective seriousness of the offending by failing to adequately consider the appellant's mental impairment and the complainant's consent. Further, it was contended that the judge erred by focusing on the complainant's intoxication and the age disparity, and by characterising the offending as a "breach of relationship."

The appellant's primary complaint was that the sentencing judge had mischaracterised the objective seriousness of the offending and had not given sufficient weight to mitigating factors, rendering the sentence manifestly excessive. Counsel for the appellant highlighted that the sentencing judge had rejected the submission that the offence was at the lower end of the seriousness scale without providing an explanation. This was despite the absence of grooming or uncharged conduct, the isolated and spontaneous nature of the event, the complainant's consent, and the appellant's low intellect and longstanding mental health issues. It was argued that the appellant's mental health issues, while not directly causal, were relevant to his state of mind and his belief regarding the complainant's age, and therefore required consideration by the sentencing judge.

Orders

Orders of the court

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Background

Background to the litigation

Before turning to consider the sole appeal ground it is necessary to set out the factual background. Factual background The offence for which the appellant was convicted occurred on 14 May 2018 and comprised a singular act of penile-vaginal sexual intercourse with the complainant, who was 15 years of age at the time. The offending occurred in the context of a ‘threesome’ involving the appellant’s then partner, AL, who was 25 years of age. The appellant was 26 years old at the time. The complainant had met the appellant and AL approximately one month before the offence occurred and would regularly spend time with them at their home in Pennington. The complainant was at that stage prone to skipping school and running away from home. She met the appellant and AL in circumstances where she was wandering the street asking for cigarettes. On the day of the offence, the complainant and the appellant visited AL in hospital. AL discharged herself and the three of them walked back to the Pennington premises. During the walk, and upon their return to the home, the appellant, AL and the complainant discussed engaging in a ‘threesome’. The complainant showered and laid on a bed with AL, who was present throughout the offending that followed. The appellant removed the complainant’s clothing and underwear and thereafter had penile-vaginal sexual intercourse with her while wearing a condom. Prior to sexual intercourse taking place, the complainant consumed cannabis with the appellant and AL and became intoxicated. The matter was reported to the police two weeks after the offence when the complainant’s mother and grandmother became aware of the sexual activity initially through an admission made by AL. The appellant was arrested on 27 May 2018. When interviewed by the police, he admitted the act of sexual intercourse. As to the matter of the complainant’s age, the appellant stated that she had told him she was 18 years old but that he did not initially believe her. He said, at the time of having intercourse with the complainant, he thought she was 18, however she told him afterwards that she was 15. The appellant told police that he considered that the complainant looked younger than 18. The offence has had a deleterious effect on the complainant. Complaints on appeal The essential complaint made on appeal is that the Judge mischaracterised the objective seriousness of the offending and failed to accord appropriate weight to the mitigatory aspects of the facts surrounding the offending and the appellant’s personal circumstances, thereby rendering the sentence manifestly excessive. Counsel for the appellant highlighted four aspects about the sentencing remarks which, he submitted, support the contention that the sentencing Judge mischaracterised the objective seriousness of the offending. The first aspect he highlighted was that the sentencing Judge rejected the appellant’s submission that the offending was an example of unlawful sexual intercourse towards the lower end of the scale of seriousness. Counsel for the appellant complains that the sentencing Judge gave no explanation for rejecting that submission. He pointed to the fact that there was no grooming or uncharged conduct leading up to the offence, that it was a spontaneous isolated event, that the complainant consented to involvement in the offending, and that the appellant was a person of low intellect with longstanding mental health issues. He contended that, although there might not be a direct causal connection between the appellant’s mental health issues and the offending, his mental health issues prominently featured in the background and the Judge was still required to take that into account when considering the appellant’s state of mind, particularly as to his belief that the complainant was of adult age. The appellant’s counsel submits that this was necessary even though the appellant had told police of his suspicion that the complainant was not of adult age.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY AND PARKER JJ

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Ratio Decidendi

Legal Principle Established

Established by: KELLY AND PARKER JJ

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