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…

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 R v Ahlburg

Details

AGLC: R v Ahlburg [1994] SASC 4628
Case: [1994] SASC 4628
Decision Date: 21 June 1994

CaseChat Overview and Summary

In the case of R v Ahlburg, the Full Court of the Supreme Court of South Australia, specifically the Court of Criminal Appeal, heard an appeal against the sentence imposed on the appellant for two counts of unlawful sexual intercourse. The appellant, aged around 20 years and nine months at the time of the offences, engaged in sexual acts with two girls, aged 16 and 15, who were significantly intoxicated. The trial judge accepted pleas of unlawful sexual intercourse in lieu of more serious charges of rape, noting the girls' incapacity to consent due to their intoxicated state. The appellant was sentenced to three years imprisonment with a non-parole period of one year, which the appellant appealed, arguing the sentence was manifestly excessive.

The legal issues before the court involved whether the sentence imposed was manifestly excessive and whether the trial judge had adequately considered relevant mitigating factors. The court had to determine whether the sentence was beyond the scope of the sentencing discretion given the serious nature of the offences and the appellant's conduct. The appeal hinged on whether the trial judge erred in imposing a custodial sentence instead of a suspended sentence, considering the appellant's age, the age gap between the appellant and the victims, his plea of guilty, and his participation in a rehabilitation program.

The Full Court of the Supreme Court dismissed the appeal, finding that the trial judge had appropriately considered all relevant circumstances, including the appellant's experience and the serious nature of the offences. The court held that the appellant, despite being relatively young, was not inexperienced and had taken advantage of the victims' incapacitated state. The court emphasised that the law aims to protect young girls from older men, and the appellant's conduct, exploiting the victims' intoxicated condition, was particularly aggravating. The sentence, though severe, was deemed appropriate given the circumstances and not manifestly excessive. The Full Court concluded that the trial judge's decision was reasonable and in line with the gravity of the offences.

Orders