R v Ahlburg

[1994] SASC 4628

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

CWDS
Criminal law and procedure - sentence - unlawful sexual intercourse - offender in a de facto relationship with 2 children - victims two girls aged 16 and 15 respectively - victims very intoxicated to knowledge of appellant - sentence 3 years with non-parole period of 1 year not manifestly excessive.

HRNG ADELAIDE, 21 June 1994 #DATE 21:6:1994

Counsel for appellant:     Mr G F Barrett

Solicitors for appellant:    Luke A Davis

Counsel for respondent:     Mr B J Jennings QC

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against the sentence imposed in the District Court for two crimes of unlawful sexual intercourse. The sentence imposed was imprisonment for three years with a non-parole period of one year.

2. The appellant at the time of the commission of these offences was aged 20 years and nine months, or thereabouts. One of the victims was a girl of almost 17 years, the other was a girl of almost 16 years.

3. The two girls, on the night in question, had been at the appellant's home with other men. There had been drinking and consumption of drugs at the house. The party had gone to a hotel, and when leaving the hotel there is no doubt that the girls were very intoxicated. The appellant had also been drinking, but he was by no means as intoxicated as the girls.

4. The appellant, another man and the two girls, went back to the appellant's home, and there the appellant had sexual intercourse with both girls and the other man had sexual intercourse with one of them.

5. The pleas to the charges of unlawful sexual intercourse were accepted in satisfaction of an information alleging rapes upon the girls, upon the basis that the girls were very drunk, and would not have consented to sexual intercourse if they had not been in that condition.

6. The learned trial judge said:
    "What is apparent, I think, by the time you returned
    from the hotel, these two young girls were clearly not
    in possession of their faculties in any sense at all,
    and certainly not in a position to involve themselves in
    any sexual activity. Although you were, to some extent,
    affected, I believe that you were in possession of your
    faculties, and you knew what you were doing. Simply, you
    took advantage of them, that is deplorable conduct."

7. I think that the learned trial judge's assessment of the situation is shown by the evidence before him to be accurate. Of course, in saying that the girls were not in a position to involve themselves in any sexual activity, the learned trial judge was not intending to convey that they were unaware of what they were doing, or that they did not consent to it, but rather, that they were in no condition to make a proper decision as to whether to engage in sexual activity.

8. I think the judge's conclusion that the appellant was well aware of that is amply borne out by the evidence.

9. The appellant has no serious criminal convictions. He has a record of minor offending, his only offences as an adult being related to the possession or manufacture of cannabis. There are four such offences as an adult. He has had a good family background. He has been involved in lifesaving activities. He was apprenticed as a locksmith until that apprenticeship was, unfortunately, interrupted by redundancy, and he has since been in other employment.

10. Mr Barrett, who appeared for the appellant before us, has submitted that the learned trial judge erred in not suspending the sentence which he imposed. He has laid particular stress upon the fact that the age difference between the appellant and the girls was not as great as exists in some cases of this type, which come before the court.

11. It is true that the age difference is not as great as we sometimes have seen and that one of the girls had almost reached the age of consent. Nevertheless, there was a substantial difference in ages. Moreover, the appellant was not, by any means, an inexperienced youth. He had an existing defacto relationship with a woman, and had two children. He, therefore, has had considerable experience of life, and that is a factor which makes his conduct on this occasion more serious.

12. Mr Barrett also laid stress on the personal factors affecting the appellant, and in particular, upon his plea of guilty, and the contrition which he has shown by that plea, and by engaging in an exercise with Operation Flinders, which resulted in an excellent report.

13. The learned trial judge, however, took all these matters into account. He said:
    "In all the circumstances, I am obliged to impose a gaol
    sentence, and I am saying for the total for both
    offences you will go to gaol for three years. There is
    much material that causes me to reflect on you. Firstly,
    you have been contrite, you regret your actions, that is
    apparent, you have pleaded guilty so as not to involve
    these young ladies in giving evidence, because clearly,
    they have little memory of the night. So, bearing all
    that in mind, and particularly the very helpful comments
    of Ms White, I am proposing to fix a 12 month non-parole
    period."

14. It is apparent from the learned trial judge's remarks that he took into account all the important matters, both relating to the circumstances of the crime, and the personal circumstances of the appellant.

15. This appeal could only succeed therefore if it could be demonstrated that having regard to those matters, no reasonable judge could have reached the decision which this judge made, and that the only proper order in the circumstances disclosed by the evidence was the suspension of the sentence.

16. I think that the circumstances surrounding the commission of the offences render it impossible to reach that conclusion.

17. I have referred to the fact that the appellant has had considerable experience of life, and to the difference in age between him and the two girls. It is the purpose of the law prohibiting sexual intercourse with girls under the age of consent to protect young girls from the advances of men, older men in particular, and to protect them from their own immature inclinations.

18. A very serious aspect of the present case is that the appellant took advantage of these young girls at a time when they were gravely intoxicated, and gravely intoxicated to his knowledge. That is an aggravating feature which makes it impossible to accede to the submission that the only proper course in the case was the suspension of the sentence.

19. The sentence imposed is undoubtedly a severe sentence, but the circumstances were serious, and I am unable to say that it was beyond the scope of the sentencing discretion. I think that it would have been very difficult for the judge in the circumstances of this case to have suspended the sentence, and I think that his decision not to do so was entirely reasonable, and entirely in accord with the gravity of the offences disclosed by the evidence. In my opinion, therefore, the appeal should be dismissed.

JUDGE2 PRIOR J I agree.

JUDGE3 PERRY J I agree.