SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
J, AD v THE QUEEN
[2020] SASCFC 73
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Stanley)
3 August 2020
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - DELAY BETWEEN OFFENCE AND SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - GENERALLY
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 - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Appeal against sentence.
The appellant was found guilty by a jury of four counts of unlawful sexual intercourse with a person under the age of 14 years, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA). He was sentenced to seven years and six months imprisonment, with a non-parole period of six years.
The amount of time passing between the offending and the passing of sentence (approximately four years and four months) was a relevant factor in sentencing. Subsequent to this offending the appellant committed offences in Western Australia, was convicted, and sentenced to a term of imprisonment of two years and two months. The appellant served 1 year and 11 months of that sentence before being extradited to South Australia. He subsequently spent 5 months and 11 days in custody on remand, before being released on home detention bail where he remained for 11 months and 16 days prior to his relevant conviction for the South Australian offending.
The appellant propounds two grounds of appeal. First, that the sentence was manifestly excessive, particularly with regard to the totality principle in light of the delay in sentence passing. Permission to appeal was previously being granted on this ground by a Judge of this Court. Secondly, he contends that the sentencing judge erred by having regard to offences for which the appellant had not been convicted, or alternatively, by taking into account uncharged conduct as an aggravating feature of each charged offence. The appellant seeks permission to appeal on this ground.
Held, per Stanley J (Kourakis CJ and Peek J agreeing) dismissing the appeal:
1. The Judge did make two factual errors in summarising the circumstances of the offending. However, even if that enlivened this Court’s power to intervene, no different sentence should be imposed.
2. The application of the principle in Mill does not call for this Court’s intervention. The two sentences of imprisonment were punctuated by a lengthy period of home detention. The offending in the two states cannot be construed as a single course of criminal conduct. There was no justification for any element of concurrence, by reason of the Western Australian offending, in imposing sentence for the South Australian offending.
3. The sentence was not manifestly excessive.
Criminal Law Consolidation Act 1935 (SA) s 49(1); Sentencing Act 2017 (SA) s 54(1)(b),…
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CaseChat Overview and Summary
The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentence imposed was so high that it constituted a manifest excess, justifying appellate intervention. This required the court to consider the principles governing appeals against sentence, particularly the threshold for finding a sentence to be manifestly excessive.
The court noted that to interfere with a sentence on the grounds of manifest excess, it must be satisfied that the sentence imposed was definitely above the highest end of the range of sentences that could be imposed on the facts before the sentencing judge. The court also considered the possibility of factual errors made by the sentencing judge in summarising the circumstances of the offending. While the judge made two factual errors in referring to uncharged acts, the Director submitted these were minor and that the judge did not impermissibly increase the sentence on account of them. However, the court expressed difficulty with this submission, noting the judge's express reference to uncharged acts and confusion regarding the occasions on which certain acts occurred, without subsequently abjuring reliance on them or explaining their use in sentencing. Despite these concerns, the court concluded that even if the judge had impermissibly had regard to the uncharged acts, no different sentence should have been imposed.
Permission to appeal was granted on the second ground, but the appeal itself was dismissed.
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
Ratio Decidendi
Legal Principle Established
To interfere with a sentence on the grounds of manifest excess the court must be satisfied that the sentence imposed was definitely above the highest end of the range of sentences that could be imposed on the facts before the sentencing judge.[23] In Hili v The Queen[24] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:[25]As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.[citations omitted][23] R v Young [2016] SASCFC 102 at [36], (2016) 126 SASR 41 at 54.[24] [2010] HCA 45, (2010) 242 CLR 520. [25] [2010] HCA 45 at [59], (2010) 242 CLR 520 at 538-539.Consideration It is convenient to commence by noting that the judge made two factual errors in summarising the circumstances of the offending. In his sentencing remarks in respect of count 2, the judge referred to the appellant digitally penetrating the complainant’s vagina, and in respect of count 3 he referred to the complainant performing fellatio upon the appellant.[26] These are not allegations that the complainant made at trial. The Director submits that these factual errors are minor because while erroneous reference was made to uncharged acts alleged to have occurred on the occasion of counts 2 and 3, at trial the prosecution alleged conduct consistent with those uncharged acts had occurred on the occasion of count 4. The Director also submits that this Court can be confident that the judge, in sentencing, did not impermissibly increase the sentence imposed on account of the uncharged acts. He was most unlikely to have overlooked the terms of the information, which only allege four counts of penile/vaginal intercourse, as he heard the evidence and summed up to the jury on the basis of those terms. [26] AB 129. I have some difficulty with that submission. It asks the Court to assume that, notwithstanding the express terms of the sentencing remarks that count 1 specifically “consisted of” the appellant performing cunnilingus and then penile/vaginal sexual intercourse, the judge did not sentence the appellant for the uncharged acts. That difficulty is compounded by the judge confusing the occasion on which acts of digital penetration of the complainant’s vagina and the appellant ejaculating into the complainant’s mouth following an act of penile/vaginal intercourse actually occurred. Further, having expressly referred to the uncharged acts, the judge did not subsequently abjure reliance upon them in imposing sentence or otherwise explain how, if at all, he used the uncharged acts in sentencing the appellant. The sentencing remarks are not as clear as they could be.