R v Abdulla

Case [2011] SASCFC 20

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ABDULLA

[2011] SASCFC 20

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice White)

1 April 2011

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - RAPE AND SEXUAL ASSAULT

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

Respondent convicted of anally raping an 11 year old boy - sentenced to seven years and nine months imprisonment with non-parole period of one year and nine months after three months credit for time in custody was allowed - Director of Public Prosecutions sought permission to appeal against sentence on the basis that the non-parole period was manifestly inadequate - whether permission to appeal should be granted - whether sentence was manifestly inadequate - effect of s 340 of the Criminal Law Consolidation Act 1935 (SA) - whether s 340 abolishes consideration of double jeopardy at all stages of a prosecution appeal or only at point of resentencing.

Held - appeal allowed (by majority) - sentence set aside and new sentence of seven years nine months with non-parole period of three years and nine months imposed - observations as to delay in sentencing.

Criminal Law (Sentencing) Act 1988 (SA) s 10(1), s 10(4); Criminal Law Consolidation Act 1935 (SA) s 340; Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (SA), referred to.
R v Stewart (1984) 35 SASR 477, applied.
R v Shrestha (1991) 173 CLR 48; R v Creed (1985) 37 SASR 566, discussed.
Everett & Phillips v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Mangelsdorf (1995) 66 SASR 60; R v Robinson [2004] SASC 189; Director of Public Prosecutions v Dinsley [2007] VSCA 31; Malvaso v The Queen (1989) 168 CLR 227, considered.

R v ABDULLA
[2011] SASCFC 20

Court of Criminal Appeal         Gray, Vanstone and White JJ

GRAY J:

  1. This is an application by the Director of Public Prosecutions for permission to appeal against sentence. 

    Introduction

  2. The respondent to this appeal, Gilbert William Vincent Abdulla, was found guilty by jury verdict in May 2009 for rape, contrary to section 48 of the Criminal Law Consolidation Act 1935 (SA). The particulars of the offence were that the defendant between 24 January 2003 and 10 April 2006, at the cemetery at Gerard, South Australia, had anal sexual intercourse with a young male, without his consent.

  3. On 15 November 2010, the trial Judge sentenced the defendant to a term of imprisonment of seven years and nine months.  A non-parole period of one year and nine months was fixed.  However, it is to be noted that both the head sentence and non-parole period were reduced by three months on account of time spent in custody and on home detention bail.  Accordingly, the Judge considered that the defendant should be subject to a total period…

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AGLC
R v Abdulla [2011] SASCFC 20
Case
[2011] SASCFC 20
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions sought permission to appeal against a sentence imposed on the respondent, who had been convicted of the anal rape of an 11-year-old boy. The respondent was sentenced to seven years and nine months imprisonment with a non-parole period of one year and nine months, after credit for time spent in custody. The Director argued that the non-parole period was manifestly inadequate and that the sentence was so low as to shock the public conscience. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The primary legal issue before the Court was whether permission to appeal against the sentence should be granted, and if so, whether the imposed non-parole period was manifestly inadequate. This involved considering the principles governing appeals against sentence, particularly when the Director argues that a sentence is too lenient. The Court also had to determine the effect of section 340 of the *Criminal Law Consolidation Act 1935* (SA) on the appeal process, specifically whether it applied to the current proceedings and how it impacted the consideration of double jeopardy.

The Court, by majority, allowed the appeal. It reasoned that the non-parole period of one year and nine months was disproportionate to the seriousness of the offence, especially given the head sentence of seven years and nine months and the legislative emphasis on deterrence when offences are committed against children. The Court found that the non-parole period was so low as to represent an error of principle and to shock the public conscience, thus meeting the threshold for interference by the appellate court. The Court also considered the application of section 340 of the *Criminal Law Consolidation Act 1935* (SA), concluding that it applied prospectively to the appeal proceedings and did not preserve a right to the pre-amendment appeal procedure.

The Court set aside the original sentence and imposed a new sentence of seven years and nine months imprisonment with a non-parole period of three years and nine months. The Court also made observations regarding the delay in sentencing, noting that while sentencing should not usually be delayed, the circumstances of this case, including an ongoing conviction appeal, justified the postponement.

Orders

Orders of the court

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Background

Background to the litigation

The complaint advanced by the Director was that the non-parole period of one year and nine months was manifestly inadequate and that this Court should interfere to maintain adequate levels of punishment for offences of this nature. It was said that the non-parole period was so far below the appropriate range of non-parole periods that it represented an error of principle and would “shock the public conscience”. Background At the time of the offence, the male victim was about 11 years of age. The defendant was about 19 years of age. The defendant and the victim were known to each other. They were both Aboriginal and resided at the Gerard Aboriginal Reserve. On the night of the offence, the defendant offered to drive the victim to a house to get some sugar. The defendant instead drove the victim to the local cemetery. The defendant took the victim out of the car, held him over the bonnet and anally raped him. When he came to be sentenced, the defendant was 25 years of age. He was raised by his aunt and uncle. When the defendant was eight or nine years old he was raped on one occasion by an older male. The defendant attended school until he was 15 years old and experienced learning difficulties. Intelligence testing conducted by Allen Fugler, a forensic psychologist, revealed that the defendant operated in the borderline intelligence range and in the lowest five percent of the general population. Despite this, the defendant had been gainfully employed at the Gerard Council for some time leading up to the time he was taken into custody. At the time of sentencing, the defendant had been in a relationship with the same woman for over 10 years and was the father of five children. He was sentenced on the basis that he had no prior convictions as an adult. However, since committing the rape, the respondent had committed several relatively minor offences. Shortly before he was sentenced, and some 17 months after he was found guilty following a trial, the defendant admitted to the offending. The Approach of the Appellate Court The Director will be granted permission to appeal if it is necessary to enable the court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or, if a sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”.[1] An error in the sentencing process may be inferred from a result that is manifestly unreasonable or plainly wrong, or by identifying the adoption by a sentencing Judge of an incorrect principle, or the giving of weight to some extraneous or irrelevant matter, or failing to give weight to some material considerations or making a mistake as to the facts.[2][1] R v Nemer (2003) 87 SASR 168 at [22]-[24]; R v Osenkowski (1982) 30 SASR 212 at 212-213. See further and generally Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; Dinsdale v The Queen (2000) 202 CLR 321.[2] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J
Although in the usual course, sentencing of persons who are awaiting determinations of appeals against conviction should not be delayed, this was not a usual case. In particular, an issue arising in the conviction appeal had the potential to affect the appropriate sentencing regime to which the defendant should be subject in light of the issue that arose in the trial regarding the defendant’s age at the time of the offending. As the discussion above demonstrates, it was accepted by the Director that this was not a usual case. Conclusion I would refuse the Director permission to appeal. VANSTONE J: After a trial by jury in the District Court the respondent was found guilty of the anal rape of an eleven year old boy. He was sentenced to a term of imprisonment of seven years and nine months with a non-parole period of one year and nine months. Both periods had been reduced by three months on account of his having spent almost one month in custody and some time on home detention bail and simple bail. The Director of Public Prosecutions now applies for permission to appeal against that sentence upon the ground that the sentence, and in particular the non-parole period, is manifestly inadequate.Background The sentencing judge found that the offence was committed when the respondent was about 19 years of age. He turned 19 in January 2004. At that time both the respondent and the victim lived at the Gerard Aboriginal Reserve. On the day of the offence they were at a house at the reserve in company with others. The victim was asked to go to another house to obtain some sugar and the respondent offered to drive him there. Instead, he drove the victim to a nearby cemetery, stopped the vehicle, took the victim from the car and, holding him over the bonnet, anally raped him. The victim’s evidence to the jury was that he was screaming and struggling in an effort to prevent the rape. It appears that the victim did not report the offence for several years and a charge was not laid until July 2007. The jury’s verdict was delivered late in May 2009. At that point bail was not revoked. Apparently the judge took the view that he should not proceed to sentence until the respondent’s appeal to the Court of Criminal Appeal had been determined. Then, when the respondent made application for special leave to appeal to the High Court, the judge again delayed sentence. Principally for these reasons, submissions in mitigation of penalty were not heard until October 2010. On that day the respondent’s bail was revoked. On 15 November 2010 sentence was imposed. At the time of the offending the respondent had not previously been convicted for any offence. Although he had appeared in the Youth Court for several offences, convictions had not been recorded. Since the current offence he was convicted for driving offences. It appears that, as an adult, the respondent worked for the Gerard Council doing manual work for a period. He has five children from a relationship with a woman spanning about ten years. Plainly, the loss of his support and role as a father to those children constitutes a heavy burden on his de facto wife and the children, the oldest of whom was aged seven years at the time of submissions.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

In my view, section 340 should be construed prospectively as applying to any appeal proceedings instituted after 3 August 2008.[18] Accordingly, the section applies to the present proceeding. The amendment was intended to alter the existing law with respect to appeals against sentence. I agree with the submission of the Director, that the amendment did not operate to affect existing rights or obligations but operated to affect the way in which rights fell to be determined at an appeal against sentence. In this respect, the amendment is procedural in character.[19] Finally, a party does not acquire a right to a particular mode of procedure on appeal until such time as the occasion for the application of the procedure arises;[20] that is, when an application for permission to appeal is lodged.[18] Compared with section 334 of the Criminal Law Consolidation Act 1935 (SA), which specifically provides for the retrospective operation of part 10 of the Act, which encompasses sections 331 to 339.[19] See Rodway v The Queen (1990) 169 CLR 515 at 522-523.[20] As a result, section 16(1)(c) of the Acts Interpretation Act 1915 (SA) does not preserve the right to the appeal procedure in force before the enactment of section 340 of the Criminal Law Consolidation Act 1935 (SA).Consideration The Director accepted that the head sentence of seven years and nine months imprisonment was at the higher end of the range of sentences normally imposed for an offence of the nature of the subject offending. However, it was pointed out that there was no appeal in respect of the head sentence by the defendant. As earlier mentioned, it was submitted by the Director that the non-parole period of one year and nine months was wholly inadequate and so low as to shock the public conscience. The Director submitted that the offence of rape carries a maximum penalty of life imprisonment. It was said that although there was no tariff or standard for the offence of rape, it always is a serious offence and that in the present proceeding, the defendant’s rape of an 11 year old boy was very serious. Attention was drawn to section 10(1)(cc) and section 10(4) of the Criminal Law (Sentencing Act) 1988 (SA), and in particular, to the legislative edict requiring the Court to give paramount consideration to the need for deterrence in circumstances where the defendant’s offending was committed against a child. In these circumstances, it was contended that a non-parole period of one year and nine months was wholly disproportionate to the seriousness of the defendant’s conduct and, in particular, to the head sentence of seven years and nine months. The Director accepted that the defendant had good prospects for rehabilitation and that there was only a limited risk of reoffending. The Director also accepted the defendant’s history of his own sexual abuse as a child. It was acknowledged that the defendant’s partner and five young children will be deprived of care and love while the defendant is in custody. However, it was said that none of these factors could justify the clear disproportion between the length of the non-parole period and the seriousness of the offending.