R v B, R - [2019] SASCFC 86

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, R
[2019] SASCFC 86
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Hughes)
18 July 2019
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 - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD
Application for permission to appeal by the Director of Public Prosecutions (DPP) against the sentence imposed on the respondent, RB, on two counts of maintaining an unlawful sexual relationship contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
The relationships were with RB’s stepdaughter, JD, and one of his biological daughters, AB. The offending against JD occurred over a nine year period, from when JD was aged five to when she turned 15. The offending included many acts of digital penetration, as well as acts of cunnilingus and fellatio, and forcing JD to watch pornography.
The offending against AB occurred over a six year period from when AB was three until she turned eight or nine. The offending included RB squirting AB’s genital area with water whilst in the bath, and general touching of the genital area whilst engaged in play or under the covers when AB was in bed.
RB was sentenced to 10 years imprisonment for the offending against JD, which was reduced by 40% to six years imprisonment on account of RB’s early guilty plea. RB was sentenced to two years imprisonment for the offending against AB, which was again reduced by 40%, to one year, two months, one week and five days imprisonment. Those sentences were cumulative upon each other, and a non-parole period of five years, eight months and four days was set. The DPP appeals against the sentences for both offences on the grounds that they are manifestly inadequate.
Held per Kourakis CJ (Peek and Hughes JJ agreeing) allowing permission to appeal and allowing the appeal:
1. The offending against JD was so protracted, extensive and harmful that it demanded some explanation for imposing any less than a 12 year sentence of imprisonment.
2. The sentence of 10 years was not only manifestly inadequate, it undermined the standard set in R v D.
3. With respect to the offending against JD, a starting point of 13 years imprisonment should be imposed. Applying a 40 per cent reduction, but with some rounding off, the sentence is 7 years 9 months 3 weeks imprisonment.
4. The sentence against AB was manifestly inadequate. The imposition of such a short sentence without any explanation raises a question of principle.
5. The offending against AB warrants a sentence of 10 years imprisonment. Applying a 40 per cent reduction, the sentence is 6 years imprisonment.
6. Although there is little reason to impose concurrent sentences when offending of this kind is committed…

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, R

Details

AGLC: R v B, R [2019] SASCFC 86
Case: [2019] SASCFC 86
Decision Date: 18 July 2019

CaseChat Overview and Summary

The matter of *R v B, R* concerned appeals against sentences imposed on the respondent, R, who had been convicted of maintaining a sexual relationship with a child. The appeals were heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Peek and Hughes JJ.

The central legal issue before the Court was whether the sentences imposed were manifestly excessive, requiring the Court to consider the appropriate sentencing principles for the offence of maintaining a sexual relationship with a child, particularly in light of the offender's subjective circumstances and the need for general and specific deterrence.

The Court engaged in a detailed review of the sentencing principles applicable to this offence, considering the gravity of the conduct, the vulnerability of the victim, and the need to reflect community condemnation. The Court analysed the sentencing judge's approach, weighing the mitigating and aggravating factors presented. The Court ultimately found that the original sentences were not demonstrably outside the range of a reasonable sentence, and therefore, the appeals against sentence were dismissed.

Orders