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…

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 B, J

Details

AGLC: R v B, J [2007] SASC 67
Case: [2007] SASC 67
Decision Date: 2 March 2007

CaseChat Overview and Summary

In the case of R v B, J, the appellant was convicted in the District Court of unlawful sexual intercourse with a 15-year-old victim. The appellant, aged 27 at the time of the offence, had engaged in vaginal intercourse with the victim while she was affected by alcohol. The jury acquitted the appellant of the more serious charge of rape, and the case proceeded by way of plea to the charge of unlawful sexual intercourse. The sentencing judge imposed a sentence of 22 months imprisonment, with a non-parole period of 12 months, which the appellant now appealed on the grounds that it was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed by the District Court was manifestly excessive and whether it should have been suspended. The court considered the particular circumstances of the offence, including the age of the victim, the appellant's belief that the victim was 16 years old and therefore legally able to consent, and the fact that the appellant had already spent more than five months in custody. The court also examined whether the factual basis of the sentence was reasonably open to the sentencing judge and what factors should be taken into account when determining the appropriate sentence.

The court held that the sentence imposed by the District Court was manifestly excessive given the circumstances of the offending. The court found that there were good reasons to suspend the sentence of imprisonment, particularly in light of the appellant's time already spent in custody. The majority of the court allowed the appeal and re-sentenced the appellant to a head sentence of 15 months imprisonment, with a non-parole period of eight months, suspended on the appellant entering a three-year good behaviour bond. This decision was based on the view that the sentence should reflect the unique circumstances of the case and take into account the need for proportionality and deterrence, while also considering the appellant's acceptance of responsibility and the impact of pre-sentence custody.

The final orders of the court were to allow the appeal against sentence, set aside the sentence imposed by the District Court, and impose a new sentence of 15 months imprisonment, with a non-parole period of eight months, suspended on the appellant entering a three-year good behaviour bond. This outcome reflects the court's consideration of the relevant factors and its view that the original sentence was not appropriate in the circumstances of the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PERRY J DAVID J

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. 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.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J, DAVID J

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