R v B, DS - [2010] SASCFC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, DS
[2010] SASCFC 55
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Kelly)
16 November 2010
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence – appellant pleaded guilty to indecent assault, unlawful sexual intercourse with a person under the age of 12 and rape – sentencing Judge imposed 15 years’ imprisonment and fixed non-parole period of nine years – sentencing Judge made a reduction for totality – appellant 69 years of age at time of sentencing – whether sentence manifestly excessive – whether sentencing Judge erred in failing to reduce sentence for each individual offence.
HELD: Appeal allowed for limited purpose of directing that sentence of 15 years’ imprisonment constitutes single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) and that a non-parole period of nine years is fixed in relation to that head sentence – reduction for totality ought to have been made in respect of each individual sentence – sentence was within appropriate range – sentence not manifestly excessive.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Power (2001) 214 LSJS 58; R v Hunter (1984) 36 SASR 101; Gulyas v Western Australia (2007) 178 A Crim R 539; R v Liddy (No 2) (2002) 84 SASR 231; R v Ellis [2010] SASC 118, considered.

R v B, DS
[2010] SASCFC 55
Court of Criminal Appeal: Duggan, Gray and Kelly JJ

DUGGAN J: The appellant pleaded guilty to charges of indecent assault, unlawful sexual intercourse with a person under the age of 12 and rape. The sentencing Judge sentenced the appellant to 15 years’ imprisonment and imposed a non-parole period of nine years. The appellant now appeals against the sentence on the basis that it is manifestly excessive.
All three offences were committed against the same complainant, who was the appellant’s step-daughter at the time. In 1980 the appellant formed a relationship with the complainant’s mother (“B”). He began to reside with B and her four daughters at their family home in Mount Gambier in 1981.
The appellant committed the indecent assault and unlawful sexual intercourse offences in 1982. The complainant was approximately 10 or 11 years old at the time of these offences. Both acts occurred within the family home.
The unlawful sexual intercourse charge occurred one evening when B had left the home for the purposes of attending a Weight Watchers meeting. The appellant had been drinking at a hotel and returned to the family home in an intoxicated state. Taking advantage of B’s absence, he forced the complainant to the floor, dragged her along the carpet, and removed her pyjama pants and underwear. He touched her on the vagina for a…

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.

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Details

AGLC: R v B, DS [2010] SASCFC 55
Case: [2010] SASCFC 55
Decision Date: 16 November 2010

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, who pleaded guilty to indecent assault, unlawful sexual intercourse with a person under the age of 12, and rape. The sentencing judge had imposed a total term of 15 years' imprisonment with a non-parole period of nine years, having made a reduction for totality. The appellant was 69 years of age at the time of sentencing.

The central legal issues before the Full Court of the Supreme Court of South Australia were whether the sentence was manifestly excessive and whether the sentencing judge had erred by failing to reduce the sentence for each individual offence before applying the totality principle.

The Full Court allowed the appeal for the limited purpose of directing that the sentence of 15 years' imprisonment be considered a single sentence pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), with the non-parole period of nine years fixed in relation to that head sentence. The Court held that while a reduction for totality ought to have been made in respect of each individual sentence, the overall sentence of 15 years was within the appropriate range and was not manifestly excessive.

Orders