James (a pseudonym) v The Queen - [2022] SASCA 82

Supreme Court of South Australia
(Court of Appeal: Criminal)
JAMES (A PSEUDONYM) v THE QUEEN
[2022] SASCA 82
Judgment of the Court of Appeal (ex tempore)
(The Honourable Justice Livesey and the Honourable Justice David)
16 August 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE
The applicant was convicted of four counts of using a carriage service to menace, harass or cause offence, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth) after being found guilty by a jury. On 4 March 2022, the applicant was sentenced to 18 months’ imprisonment, but an order was made for immediate release pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) and the applicant was ordered to enter into a recognizance in the sum of $1,000 to be of good behaviour for five years, with two of those years to be under the supervision of a probation officer.
The offending involved the applicant sending abusive messages to a man with whom she had previously had sexual intercourse with, as well as to his fiancé, and two members of his extended family.
By Notice of Appeal filed 24 March 2022, the applicant sought permission to appeal against her sentence on the grounds that the sentence was manifestly excessive, the sentencing judge sentenced on an inconsistent factual basis and the sentencing judge erred in failing to bring to the applicant’s attention his intention to sentence on an inconsistent factual basis.
Held (the Court) refusing permission to appeal:
1. The sentence was not manifestly excessive.
2. There was no error of fact made in the approach to sentence.
3. Even if the issue of consent was relevant and material to sentence and it were necessary to resentence, no lesser sentence would be imposed.

Crimes Act 1914 (Cth) pt IB ss 20, 85ZE; Criminal Code Act 1995 (Cth) s 474.17, referred to.
Agostino v Cleaves [2010] ACTSC 19; Hilli v The Queen (2010) 242 CLR 520; Kentwell v The Queen (2014) 252 CLR 601; Maier v Police [2004] SASC 367; Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154; R v Jacques [2021] SASCA 94; R v Williams [2017] QCA 307; The Queen v Pham (2015) 256 CLR 550; Weinert v Commonwealth DPP [1999] SASC 34, considered.

JAMES (A PSEUDONYM) v THE QUEEN
[2022] SASCA 82
Court of Appeal – Criminal: Livesey P and David JA
THE COURT (ex tempore):
Introduction

This is an application for permission to appeal against sentence imposed following verdicts entered after a jury found the applicant guilty of four counts of using a carriage service to menace, harass or cause offence, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth), for which the maximum penalties were each…

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 James (a pseudonym) v The Queen

Details

AGLC: James (a pseudonym) v The Queen [2022] SASCA 82
Case: [2022] SASCA 82
Decision Date: 16 August 2022

CaseChat Overview and Summary

The applicant, referred to as James, sought permission to appeal against a sentence imposed by a sentencing judge. The dispute concerned whether the sentence was manifestly excessive and whether the sentencing judge had erred in their factual findings when determining the sentence. The matter was before the appellate court for consideration of the application for permission to appeal.

The primary legal issues before the court were whether the sentence imposed was manifestly excessive, and whether the sentencing judge had made an error of fact in their approach to sentencing, particularly concerning the applicant's belief about the nature of a sexual encounter that preceded the offending. The applicant contended that her evidence regarding the sexual encounter, which she described as non-consensual rape, should have been accepted. The respondent argued that the evidence did not support this view, pointing to the unchallenged evidence of the man involved and the lack of any record of a prior report of sexual assault.

The court considered the applicant's assertion that the sexual intercourse was not consensual. It noted that the man's evidence of a consensual encounter was unchallenged, and the applicant had not put to him that consent was lacking. Furthermore, a search of police records revealed no report of a sexual assault by the applicant concerning the man prior to November 2017, despite some messages suggesting rape. The court observed that the sentencing judge had not been asked to make a positive finding regarding the applicant's belief about the consensual nature of the encounter, especially given that the applicant's denials of her own offending had been rejected by the jury. While acknowledging that a belief in non-consent might have mitigated moral culpability, the court found that, even assuming this issue was material to sentence, the applicant's subjective belief did little to minimise the seriousness of her offending, given the protracted nature of the offending, the content of messages, and the efforts made to send them. The court concluded that it was not reasonably arguable that the sentence was manifestly excessive or that the sentencing judge had made an error of fact.

Consequently, the application for permission to appeal the sentence was dismissed. The court indicated that even if there had been an arguable error in failing to make a positive finding about the applicant's state of mind concerning the sexual encounter, it would not have imposed a different penalty on resentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Permission to appeal the sentence on the ground of manifest excess must be refused. Appeal Grounds 2 and 3: factual basis inconsistent with the evidence For the applicant, it is next contended that her evidence regarding the nature of the sexual encounter should have been accepted. She said that the sexual intercourse was not consensual and that she was raped. The applicant gave evidence that she reported the rape to police. For the respondent, it is submitted that this view of the evidence was not made out. The man gave unchallenged evidence of a consensual sexual encounter, and it was never put to him that there was a lack of consent. Insofar as it was suggested that the applicant reported a rape in August 2017, the unchallenged evidence of a detective was that a search of SA Police systems found no record of any report of a sexual assault concerning the applicant and the man prior to November 2017. Whilst the respondent says that the first suggestion of a non-consensual encounter came during the record of interview in November 2017, we note that some of the messages accused the man of rape. Both approaches must be rejected. The relevant question was probably whether the applicant believed that the sexual encounter was not consensual. That issue does not appear to have been squarely addressed in the sentencing process. Indeed, it is noteworthy that the sentencing judge was not asked to make any positive finding regarding the applicant’s belief on the point. In circumstances where the applicant’s denials regarding her own offending were clearly rejected by the jury, and where the sentencing judge sentenced the applicant on the basis that she did not admit to any wrongdoing, it is unsurprising that the sentencing judge did not make any positive finding as to whether there was or was not a consensual sexual encounter or, indeed, as to the applicant’s belief on the topic. That approach is not undermined by the submission that the applicant now belatedly accepts the verdicts. In the absence of considered submissions on the point before the sentencing judge, it is difficult to see how this issue became material to the question of sentence. However, let it be assumed that this issue was relevant and material to sentence, because a belief that the sexual encounter was not consensual may have somewhat mitigated the applicant’s offending by diminishing her moral culpability. Even assuming it were necessary to resentence, we would not be disposed to impose any lesser sentence than was in fact imposed by the sentencing judge.[5] Given the protracted nature of the offending, the content of the messages and the efforts made to send them, the applicant’s subjective belief did little to minimise the seriousness of her offending. [5] Kentwell v The Queen (2014) 252 CLR 601. In these circumstances, the application for permission to appeal on these grounds must be dismissed.Conclusion It is not reasonably arguable that the sentence which was imposed is manifestly excessive or that the sentencing judge made any error of fact in his approach to sentence.

Decision

Reasons for decision

In these circumstances, the application for permission to appeal on these grounds must be dismissed.Conclusion It is not reasonably arguable that the sentence which was imposed is manifestly excessive or that the sentencing judge made any error of fact in his approach to sentence. Even if it could be said that there was an arguable error in failing to make a positive finding about the applicant’s state of mind concerning the nature of the sexual encounter which preceded the offending, we would not impose any different penalty on resentence. The application for permission to appeal sentence must be dismissed.

Ratio Decidendi

Legal Principle Established

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