SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v AMOS (A PSEUDONYM)
[2021] SASCA 126
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice David)
28 October 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Application for permission to appeal against sentence by the Director of Public Prosecutions (SA).
The respondent pleaded guilty to seven counts of indecent assault pursuant to s 56(1) of the Criminal Law Consolidation Act 1935 (SA), one count of unlawful sexual intercourse pursuant to s 49(3) of the Criminal Law Consolidation Act 1935 (SA), one breach of s 66L(2) of the Child Sex Offenders Registration Act 2006 (SA) and one breach of s 44(1) of the Child Sex Offenders Registration Act 2006 (SA).
The offending took place over a period of approximately two years when the complainant was aged between 14 and 16 years.
A Judge of the District Court imposed a term of imprisonment of three years, nine months and two weeks imprisonment with a non-parole period of three years and one week. The sentence commenced from 8 November 2018, the date the respondent was taken into custody.
The appellant appealed on the basis that the sentence was manifestly inadequate.
Held, by the Court, granting permission to appeal and allowing the appeal:
1. The sentence imposed is manifestly inadequate.
2. It is necessary for this Court to intervene to maintain the sentencing standard for offences of this kind and to maintain public confidence in the administration of justice.
3. The sentence imposed in the District Court is set aside.
4. On resentence, the respondent is sentenced to eight years imprisonment with a non-parole period of six years and five months with the sentence to commence from 8 November 2018, the date the respondent was first taken into custody.
Child Sex Offenders Registration Act 2006 (SA) s 44(1), s 66L(2); Criminal Law Consolidation Act 1935 (SA) s 49(3), s 56(1); Sentencing Act 2017 (SA) s 11(1)(f), s 53(1)(a), referred to.
Dinsdale v The Queen (2000) 202 CLR 321; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; R v Buttigieg [2020] SASCFC 38; R v D (1997) 69 SASR 413; R v Harkin [2011] SASCFC 24; R v MJJ, R v CJN (2013) 117 SASR 81; R v Nemer (2003) 87 SASR 168; R v Peet [2018] SASCFC 91; Queen v Smith (1987) 44 SASR 587; R v RGC [2020] SASCFC 102; Veen v The Queen (No 2) (1988) 164 CLR 465, considered.
R v AMOS (A PSEUDONYM)
[2021] SASCA 126
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- R v Amos (a pseudonym) [2021] SASCA 126
- Case
- [2021] SASCA 126
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CaseChat Overview and Summary
The central legal issue before the Court was whether the sentence of three years, nine months, and two weeks imprisonment, with a non-parole period of three years and one week, was so inadequate as to warrant appellate intervention. This involved considering whether the sentencing judge had erred in his assessment of the factual basis for sentencing and in the application of sentencing discounts, and more broadly, whether the sentence failed to reflect the seriousness of the offending and maintain public confidence in the justice system.
The Court found that the sentence imposed was manifestly inadequate. It noted that while the sentencing judge had not made an error in his findings of fact, he had not been apprised of an agreed factual basis for sentencing. More significantly, the Court determined that intervention was necessary to uphold sentencing standards for such offences and to maintain public confidence. The Court concluded that the original sentence did not adequately reflect the gravity of the respondent's conduct, which involved grooming and sexual abuse of a child.
Consequently, the Court granted permission to appeal, allowed the appeal, and set aside the sentence imposed by the District Court. On resentence, the respondent was ordered to serve eight years imprisonment, with a non-parole period of six years and five months, commencing from the date of his initial custody.
Orders
Orders of the court
Held, by the Court, granting permission to appeal and allowing the appeal:
1. The sentence imposed is manifestly inadequate.
2. It is necessary for this Court to intervene to maintain the sentencing standard for offences of this kind and to maintain public confidence in the administration of justice.
3. The sentence imposed in the District Court is set aside.
4. On resentence, the respondent is sentenced to eight years imprisonment with a non-parole period of six years and five months with the sentence to commence from 8 November 2018, the date the respondent was first taken into custody.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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