Mark John Hunter v R No. 4231 Judgment No. SCCRM 93/340 Number of Pages 3 Criminal Law and Procedure Sentence

[1993] SASC 4231

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MILLHOUSE(2) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - sentence - unlawful sexual intercourse by man aged 20 with girl aged 13 years 7 months - imprisonment for 3 years with non-parole period of 2 years suspended on condition of 300 hours community service not excessive.

HRNG ADELAIDE, 20 October 1993 #DATE 20:10:1993
Counsel for appellant:     Mr G P G Mead
Solicitors for appellant:    Gregory Mead
Counsel for respondent:     Ms W J Abraham
Solicitors for respondent: Director of Public
   Prosecutions (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against a sentence imposed for the crime of unlawful sexual intercourse. The sentence was passed in the Supreme Court following conviction consequent upon the appellant's plea of guilty. He was sentenced to imprisonment for three years with a non parole period of two years. That sentence was suspended upon his entering into a bond to be of good behaviour for a period of two years and to perform 300 hours of community service within 12 months. 2. The appellant was aged 20 years at the time of the offence. The girl with whom he had sexual intercourse was aged 13 years and 7 months. The appellant and the girl went for a ride on a three wheeler motorcycle and it was whilst away on that expedition that sexual intercourse took place between them. The appellant was at least somewhat under the influence of intoxicating liquor at the time. 3. This is by no means the appellant's first offence, although it is his first offence as an adult. As a child he has had a long succession of offending, although none of that offending is of a sexual character. 4. Mr Mead for the appellant has referred us to statistics and has also referred us to certain cases in this court in which sentences have been dealt with by the Court of Criminal Appeal for the offence of unlawful sexual intercourse. It is necessary to stress, once again, that each case depends upon its own facts and that, whilst statistics can be looked at in order to ascertain the tariff operating in the courts for certain types of offences and may be a useful guide in some cases, it is a mistake to attempt to compare one case with another on the facts for the purpose of determining an appropriate sentence. The sentence which might be regarded as excessive on the facts of one case will not be so on the facts of another case. 5. The serious aspect of the present crime is the age of the girl. She was only 13 years and 7 months and very much younger and less mature than the appellant who was 20 years of age. She was a virgin at the time of the commission of the offence and, in fact, sustained some vaginal injury in consequence of the act of intercourse. 6. The sentence of three years imprisonment, with a non parole period of two years, is undoubtedly a severe sentence for this crime and probably can be regarded as a top of the range of sentences which were available to the learned sentencing judge in the circumstances of the case. Nevertheless, in this type of offence, as in all types of offences, the sentencing judge has a wide sentencing discretion and it will be interfered by the appellant court only where there has been some demonstrable error or where the sentence is so excessive that there must exist an undisclosed error. I do not regard the sentence of three years, with a two year non parole period, as being in that category in the present circumstances. As I say, the sentence is high and it is probably at the top of the range, but when one looks at the overall sentencing package, including the suspension of that sentence, I do not think that it can be said that the sentence is manifestly excessive. I would, therefore, dismiss the appeal.

JUDGE2 MILLHOUSE J I agree.

JUDGE3 DEBELLE J I agree with the reasons of the Chief Justice and the order he proposes.