R v B, J - [2007] SASC 67

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, J
[2007] SASC 67
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Gray and The Honourable Justice David)
2 March 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Appeal against sentence - appellant convicted of unlawful sexual intercourse with victim aged 15 years - appellant aged 27 years at time of offending - victim affected by alcohol - whether sentence manifestly excessive - whether sentence should have been suspended - whether factual basis of sentence was reasonably open to sentencing judge - relevant factors - held, appeal allowed - given circumstances of offending, head sentence was manifestly excessive - (by majority) appellant re-sentenced to head sentence of 15 months with non-parole period of 8 months, suspended on entering a bond.
Criminal Law Consolidation Act 1935 (SA) s 48, s 49(3); Criminal Law (Sentencing) Act 1988 (SA) s 11(1), referred to.
Gannon v Harper (SC(SA), Bollen J, 20 July 1989, Jud No 1627, unreported); R v Doecke (1999) 205 LSJS 304; R v Halse (1997) 70 SASR 456, considered.

R v B, J
[2007] SASC 67
Court of Criminal Appeal: Perry, Gray and David JJ

PERRY J. I agree with the orders proposed by Gray J and with his reasons.
GRAY J.
This is an appeal against sentence.
The appellant was charged with the offence of rape – contrary to section 48 of the Criminal Law Consolidation Act 1935 (SA). He was also charged with unlawful sexual intercourse – contrary to section 49(3) of the Criminal Law Consolidation Act. Both charges arose from the same incident, which occurred on 10 September 2003.
The appellant was acquitted by jury verdict of the charge of rape. He was convicted following his plea of the offence of unlawful sexual intercourse. The sentencing Judge imposed a term of imprisonment for twenty-two months. In arriving at the head sentence, the Judge made a reduction of eight months on account of the appellant’s plea. A non-parole period of twelve months was fixed. The term of imprisonment and the non-parole period commenced on 18 September 2006.
At the time of the offence, the female complainant was aged 15 years. As a result, the appellant was exposed for the offence of unlawful sexual intercourse to a maximum penalty of a term of imprisonment of seven years.
The Judge summarised the basis on which he sentenced the appellant:
I find that you met the complainant and her friend outside the delicatessen after her friend bought some matches. You teamed up with these girls, drove them around in your car and twice bought them alcohol. It was reasonable for you to believe the complainant was aged 16 years because she said she had left school and had a job. She was, in fact, 15 years, and you were then aged 27 years.
I find that you hoped one or other of them would consent to sexual intercourse with you once you had plied them with sufficient alcohol. Your offending was opportunistic in that sense. You had not had much to drink and you were an experienced drinker. What you hoped for became a reality with the complainant. She was certainly affected by alcohol, but nothing like the degree she claimed. You took advantage of her in that state. That was precisely what you wanted. You knew she was young, even though you believed she was older than was in fact the case. At the very least, you believed she was consenting. I also find that you knew she was not legally able to consent.
The Judge referred briefly to the personal antecedents of the appellant in the following terms:
I acknowledge that you are effectively without prior convictions. You are now aged 30 years and your work history suggests you are intelligent and hardworking.
The Judge then commented about the seriousness of the appellant’s offending:
The purpose of the law in this area is the protection of young women. You were certainly much older than her, were more experienced, mature and worldly.
General and personal deterrence must play a central part in sentencing you. In the context of this case, older men need to be deterred from engaging in such conduct with young women.
… This case sits in about the mid-range of seriousness for offences of this type.
In these circumstances, the Judge imposed the following sentence:
But for your early indication of a plea, I would have sentenced you to imprisonment for 30 months. That is reduced to 22 months. I fix a non-parole period of 12 months. Both the head sentence and non-parole period are to date from the date of your plea, namely 18 September, 2006.
The Judge declined to suspend the sentence. In that respect, he reasoned:
In view of the factual basis upon which I indicated I would sentence you, particularly that you plied these young women with alcohol in the hope of an act of sexual intercourse, your offending is too serious to suspend the inevitable sentence.
On the hearing of the appeal, counsel for the appellant submitted that errors of sentencing principle had occurred, that the sentence imposed was manifestly excessive, and that the sentence of imprisonment should have been suspended.
Counsel submitted that the appellant had believed that the complainant was sixteen years of age, as she had indicated to him that she had left school and was employed. The Judge accepted that this was the appellant’s state of mind. Counsel further submitted that, at the time of the offence, the appellant believed that the age of consent in South Australia was sixteen. In this respect, the appellant had given unchallenged evidence.
It is to be observed that the Judge made a positive finding that the appellant knew that the complainant was not legally able to consent. The appellant had given unchallenged sworn evidence about his belief as to the age of consent being 16 years. The Judge made no reference to this testimony or any rejection of it. In the circumstances, the Judge should have sentenced the appellant on the basis of his unchallenged evidence.
This was an important matter relevant to sentencing, as it went to the assessment of the criminal culpability of the appellant. Despite his mistaken belief that the age of consent could not operate as a defence, it was a relevant matter to penalty.
Counsel for the appellant further submitted that the sentencing Judge erred in finding that the appellant had “plied these young women with alcohol”. The gravamen of this finding was to suggest that the appellant was responsible for the complainant being affected by alcohol, and that she succumbed because of this conduct. Counsel pointed out that at the time that the appellant struck up a conversation with the female complainant and her girlfriend, they were on their way to purchase alcohol for their own consumption. He then offered to purchase alcohol for them and they agreed.
Against the background that the complainant and her friend were intending to purchase and consume alcohol, the Judge’s finding was in error. The complainant intended to consume alcohol. The appellant paid for that alcohol. This was a very different circumstance to the provision of alcohol to a complainant in circumstances where she would not otherwise have consumed any alcohol.
The sentencing Judge proceeded on a misunderstanding of the facts in the above respects. It follows that his sentencing discretion miscarried. For this reason, the sentencing discretion should be re-exercised.
The charge of rape involved a direct conflict in the evidence of the complainant and that of the appellant. The jury’s verdict at the very least demonstrates that they were not satisfied beyond reasonable doubt of the complainant’s account. The appellant was to be sentenced on the basis that the complainant had been a consenting party to what occurred, or at the very least on the basis that this was a reasonable hypothesis open on the evidence.
Counsel for the appellant contended that, on the appellant’s evidence, the complainant was not only a willing participant but was “pro-active in her pursuit of sexual activity”. Counsel further pointed out that, according to the appellant, the complainant led him to believe that she was sexually experienced.
Although the sentencing Judge proceeded on the basis that the complainant was a consenting party, it is unclear whether he accepted the submission that she was proactive and sexually experienced. This was an important matter on which the Judge should have indicated the basis on which he would sentence.
In the present case, it is important to have regard to section 11(1) of the Criminal Law (Sentencing) Act 1988 (SA). That section provides:
A sentence of imprisonment may only be imposed—
(a)     if, in the opinion of the court—
(i)    the defendant has shown a tendency to violence towards other persons; or
(ii)     the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)     the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)    any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b)     if a sentence of imprisonment is necessary to give proper effect to the primary policy stated in section 10(2).
In Gannon v Harper,[1] Bollen J noted:[2]
The spirit of s 11 really says nothing different to that which the courts have always thought, that is, that imprisonment should be a last resort.
[1] Gannon v Harper (SC(SA), Bollen J, 20 July 1989, Jud No 1627, unreported).
[2] Gannon v Harper (SC(SA), Bollen J, 20 July 1989, Jud No 1627, unreported).
This Court discussed the correct sentencing approach in Doecke.[3] Mullighan J, with whom Doyle CJ and Perry J agreed, observed:[4]
The correct approach in the sentencing process is discussed by Lord Parker in R v O’Keefe [1969] 2 QB 29 at 32:
“…it seems to this court that before one gets to a suspended sentence at all, the court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fines, and then say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment, should be: is immediate imprisonment required, or can a suspended sentence be given?”
See also Wood v Samuels (1974) 8 SASR 465 at p469 and The Queen v Palliaer (1984) 35 SASR 569. These observations accord with the principle in s11 of the Criminal Law (Sentencing) Act.
[3] R v Doecke (1999) 205 LSJS 304.
[4] R v Doecke (1999) 205 LSJS 304 at [14]-[15].
Counsel for the respondent submitted that, in the context of the present proceedings, the purpose of the law is to protect adolescent females from their immature sexual curiosity and to protect them from sexual exploitation or corruption by older sexually experienced men. Counsel drew attention to the disparity in ages: - the appellant was 27 years old and the complainant was 15 years old. This is a relevant sentencing factor. However, it does not of itself preclude the exercise of the discretion to suspend a sentence.
Counsel for the respondent made reference to the case of Halse,[5] where an immediate custodial term was imposed. This is a notoriously difficult offence in which to compare sentences imposed on different offenders. The circumstances vary significantly. Age can be misleading as a measure of maturity. The decision in Halse does not assist in the present case – the accused was aged 37 years and had relevant criminal antecedents,[6] including offences of attempted rape and gross indecency.
[5] R v Halse (1997) 70 SASR 456.
[6] R v Halse (1997) 70 SASR 456 at 457.
The material before the sentencing Judge disclosed that it was appropriate to treat the appellant as a first offender. He was in employment and, as the Judge found, was intelligent and hard working. In these circumstances, the Judge should, unless the offending was too grave, sentence the appellant to a penalty other than an immediate custodial term. On the issue of suspension, the Judge appears to have paid little regard to these circumstances. Further, the exercising of his discretion not to suspend the sentence relied heavily on the Judge’s conclusion that the appellant had “plied” the young women with alcohol.
Counsel for the appellant further submitted that the appellant’s offending could properly be described as isolated and impulsive. It was pointed out that this rape charge had been “hanging over his head” for some three years. A first trial had not proceeded, through no fault of the appellant. The appellant had then had the experience of facing a trial of rape which at all times he had strenuously resisted and in respect of which a not guilty verdict had been returned.
Error occurred in the sentencing process. This Court should re-sentence the appellant. A head sentence of 15 months should be imposed. A non-parole period of eight months should be fixed.
There is good reason to suspend the sentence of imprisonment. In reaching this conclusion it is relevant to have regard to the fact that the appellant has spent more than five months in custody with respect to his offending. I would suspend the sentence of imprisonment and order the immediate release of the appellant on his entering into a bond to be of good behaviour for three years.
Conclusion
I would allow the appeal and set aside the sentence imposed by the District Court. I would impose a head sentence of 15 months. I would fix a non-parole period of eight months. I would suspend the sentence on the appellant entering into a three-year good behaviour bond.
DAVID J. This is an appeal against sentence. The appellant was charged on Information with the offences of rape, contrary to s 48 of the Criminal Law Consolidation Act 1935, and unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act. Both charges arose on the same occasion and the victim was a female aged 15 years.
The appellant pleaded guilty in the District Court to the charge of unlawful sexual intercourse, but the prosecution would not accept the plea and the trial proceeded. The jury acquitted the appellant of the rape charge, and therefore the matter proceeded by way of plea to the alternative charge of unlawful sexual intercourse.
At the time of the offending the maximum penalty for the offence of unlawful sexual intercourse was imprisonment for seven years. The sentencing judge would have sentenced the appellant to imprisonment for 30 months, but, bearing in mind his plea of guilty, this was reduced to 22 months, against which he fixed a non-parole period of 12 months. The head sentence and the non-parole period were directed to run from the date of the plea, namely 18 September 2006. The appellant has been in custody since that date.
The appellant is 30 years of age. The offence occurred on 10 September 2003. The appellant met the complainant and a girlfriend of the complainant outside a delicatessen. After engaging them in some conversation, they accepted a lift in the appellant’s car. He bought some alcohol, and it was the view of the sentencing judge that he plied both girls with alcohol in the hope that this might reduce them to a state in which he might have intercourse with at least one of them. The undisputed evidence at trial was that whilst alone in the car with the victim he had vaginal sexual intercourse with her.
The victim said that she drank to the point that she fell asleep on the back seat of the car, but the sentencing judge found that although she was affected by alcohol, it was not to the degree she claimed.
In evidence, the appellant said that the victim was not asleep during intercourse and that she was a willing participant in what happened, and in fact she invited him to engage in vaginal sexual intercourse.
The appellant also said that he thought that the victim was 16 years of age rather than 15 years of age, and that he also thought that at the age of 16 years the victim was legally able to consent to intercourse.
Another point of difference was that the victim said that she was a virgin at the time of the offence, but the appellant asserted that she informed him that she was sexually experienced.
In his remarks the sentencing judge does not clearly resolve these conflicts. However, he did find that the appellant knew that the victim was not legally able to consent to intercourse. In his remarks he was silent on the question of her virginity, and, in relation to the basis of fact as to how the act of intercourse took place, he said:
I find that you hoped one or other of them would consent to sexual intercourse with you once you had plied them with sufficient alcohol. Your offending was opportunistic in that sense. You had not had much to drink and you were an experienced drinker. What you hoped for became a reality with the complainant. She was certainly affected by alcohol, but nothing like the degree she claimed. You took advantage of her in that state. That was precisely what you wanted. You knew she was young, even though you believed she was older than was in fact the case. At the very least, you believed she was consenting. I also find that you knew she was not legally able to consent.
It is clear that the sentencing judge rejected the victim’s evidence that she was asleep when intercourse started, as that version was inconsistent with the jury’s verdict. However, the sentencing judge seemed to reject the appellant’s evidence that the victim invited him to have vaginal sexual intercourse. Although it would have been more appropriate for the sentencing judge to explain why that was so, nevertheless, on looking at the evidence as a whole, I cannot disagree with the final basis of fact that he arrived at for sentencing.
The appellant has a good work history and no prior convictions.
Arguments on appeal
The grounds of appeal are:
1.The sentence is manifestly excessive; and
2.The learned sentencing Judge erred in failing to suspend the sentence imposed.
Conclusion
Mr D Edwardson QC for the appellant compared the present sentence to a number of other cases. In my view comparing sentences has a limited value. The main thrust of Mr Edwardson’s argument was that bearing in mind the unplanned nature of the offence and the previous good record of the accused, in that he has no previous convictions and has a good work record, the starting point of 30 months is manifestly excessive. In the circumstances of the present case, I agree. This was not a case of continuing behaviour, and, indeed, the meeting was quite unplanned, although the appellant obviously took advantage of the situation. As a result, I am of the view that the sentencing process has miscarried in starting with a head sentence which is too high.
Mr Edwardson also argued that it was implicit in his submissions that the sentencing judge erred in not suspending the term of imprisonment that he imposed. In his remarks the sentencing judge said:
In view of the factual basis upon which I indicated I would sentence you, particularly that you plied these young women with alcohol in the hope of an act of sexual intercourse, your offending is too serious to suspend the inevitable sentence.
As I have indicated, although it would have been better if the sentencing judge had explained why he seemingly rejected the appellant’s version, I nevertheless find that the basis of fact upon which the sentencing judge sentenced is appropriate, and his decision not to suspend the sentence was well within the proper exercise of his discretion.

I would allow the appeal, and on re-sentencing I would impose a head sentence of imprisonment for 15 months with a non-parole period of eight months. For the reasons set out by the sentencing judge, I would not suspend the term of imprisonment.