R v AWL - [2003] SASC 416

R v AWL
[2003] SASC 416
Court of Criminal Appeal: Prior, Debelle and Bleby JJ

PRIOR J Debelle J will give reasons in this matter.
DEBELLE J The appellant pleaded guilty to four counts of unlawful sexual intercourse with his daughter contrary to s 49(3) of the Criminal Law Consolidation Act 1935 and to one count of procuring an act of gross indecency contrary to s 58A of the Criminal Law Consolidation Act.
The appellant pleaded not guilty to one count of gross indecency contrary to s 58 of the Criminal Law Consolidation Act. He elected to be tried by a judge alone without a jury. He was convicted of that offence.
For these six offences, the judge sentenced the appellant to a term of imprisonment for 10 years with a non-parole period of six years.
The appellant appeals against the conviction for gross indecency and, by leave, against the sentence. I deal first with the appeal against the conviction for gross indecency.
Appeal against Conviction
The trial for the charge of gross indecency proceeded on what were essentially agreed facts. The issue was whether, in law, the appellant could properly be convicted of the offence.
The appellant was charged with committing an act of gross indecency in the presence of a child under the age of 16 years contrary to s 58 of the Criminal Law Consolidation Act. Section 58(1) provides:
“(1) any person who, in public or in private –
(a) commits any act of gross indecency with, or in the presence of, any person under the age of sixteen years ...
shall be guilty of an offence and liable for a first offence to be imprisoned for a term not exceeding three years and for any subsequent offence to be imprisoned for a term not exceeding five years.”
Subsection (2) provides that it is not a defence to a charge under this section if the act of indecency was committed with the consent of the person concerned.
It was common ground that the appellant had taken a photograph of himself naked with his erect penis placed on a pillow close to the head of the victim, a child under the age of 16 years who was asleep with her head resting on the pillow. The offence was detected when that photograph and other photographs were discovered in the possession of the appellant. The appellant admitted he had taken the photographs. There was no suggestion of any other indecent act. The appellant did not touch the sleeping child in any way.
The only issue at the trial was whether the appellant could be guilty of the offence given that the child was asleep at the time. The trial judge held that it was not necessary for the prosecution to prove that the child had a conscious observance or understanding of the act. It was, he said, sufficient if the act occurred in the presence of a child whether awake or asleep.
The appellant contends that…

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 AWL

Details

AGLC: R v AWL [2003] SASC 416
Case: [2003] SASC 416
Decision Date: 10 December 2003

CaseChat Overview and Summary

The appellant in R v AWL pleaded guilty to multiple counts of unlawful sexual intercourse with his daughter and one count of procuring an act of gross indecency, while contesting a charge of gross indecency. The trial judge convicted him on the contested charge, sentencing him to ten years imprisonment with a non-parole period of six years. The appellant appealed both the conviction and the sentence. The appeal against the conviction centred on whether the appellant could be found guilty of the charge of gross indecency when the child was asleep. The court held that the requirement under s 58 of the Criminal Law Consolidation Act was simply for the child to be present during the act, not necessarily conscious of it. The appeal against the sentence addressed the severity of the offending, with the court ultimately dismissing the appeal, finding the sentence within acceptable parameters given the gravity of the crimes.

The court found the appellant's actions to be a severe breach of trust and a gross exploitation of his daughter, justifying a substantial penalty. The judges acknowledged the appellant's contrition and early guilty plea but balanced these against the heinous nature of the crimes. They also noted the judge's leniency in not sentencing the appellant on the contested count of gross indecency. The court concluded that the sentence, while severe, was not manifestly excessive and thus upheld the sentence imposed by the trial judge.

The final order of the court was to dismiss both the appeal against conviction and the appeal against sentence, affirming the trial judge's decision. The judges were in unanimous agreement that the conviction for gross indecency was legally sound and that the sentence, though harsh, was appropriately severe given the nature of the offending.

Orders