R v Amos (a pseudonym)

Case [2021] SASCA 126

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
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions (DPP) appealed against a sentence imposed by the District Court on the respondent, R v Amos (a pseudonym), for offences including indecent assault and unlawful sexual intercourse with a child. The DPP contended that the sentence was manifestly inadequate.

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

The Sentencing Judge sentenced the respondent to three years, nine months and two weeks imprisonment with a non-parole period fixed at three years and one week for the offending, including the two breaches of the Act. The Director of Public Prosecutions (“DPP”) has appealed on the basis that the sentence imposed is manifestly inadequate. For the reasons that follow, we would give permission to appeal, allow the appeal and resentence the respondent. Background The respondent was originally charged with six counts of indecent assault (four counts were aggravated) contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA) and three counts of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). After discussions with the DPP, the respondent pleaded guilty to seven counts of indecent assault and one count of unlawful sexual intercourse. One count of unlawful sexual intercourse was withdrawn and a plea to indecent assault was accepted by the DPP in relation to the other count of unlawful sexual intercourse. The respondent was also charged with breaches of the Act (two counts). At the commencement of the appeal, counsel for the DPP, Ms Dunlop, drew the Court’s attention to two matters. First, she submitted that the respondent had not been sentenced on a correct factual basis. The Sentencing Judge, she conceded, had not made an error — he simply had not been apprised of an agreement the parties had reached as to the appropriate factual basis for sentencing. Secondly, the Sentencing Judge erred in applying a reduction of 5% to the sentence for the respondent’s guilty pleas for all offences when, in fact, his pleas to the breaches of the Act rendered the respondent eligible for a reduction of up to 30%. Ms Dunlop, correctly in our view, did not seek to rely on this process error to suggest a basis for this Court to resentence the respondent. The DPP, she submitted, relied solely upon the submission that the sentence imposed was manifestly inadequate. Ms Dunlop submitted that both errors could be rectified if the Court was persuaded to resentence the respondent.Factual basis for sentencing The respondent is a cousin of the complainant’s deceased father. The complainant and respondent had contact throughout the complainant’s life, however this increased following the death of the complainant’s father. The complainant and his family referred to the respondent as “Uncle”. The respondent spent time at the complainant’s home. He provided assistance to the complainant’s mother by doing general maintenance around the complainant’s home. While at the complainant’s home the respondent gave him (and his siblings) massages. He touched the complainant on the upper bottom, put his hand up the complainant’s shirt and tried to remove the complainant’s top. The complainant said that the respondent gave him “weird hugs” and rubbed his face into the complainant’s neck. When he was about 14 years of age, the complainant believed that the massages and suggestive comments made by the respondent indicated a sexual interest in him. Clearly, the respondent was “grooming” the complainant.

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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