R v B, RP - [2019] SASCFC 9

Supreme Court of South Australia
(Court of Criminal Appeal)
R v B, RP
[2019] SASCFC 9
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bampton, The Honourable Justice Parker and The Honourable Auxiliary Justice David)
4 February 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
This is an appeal against the sentence imposed for two counts of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
On 1 December 2017, following a trial by jury the appellant was convicted of maintaining an unlawful sexual relationship with Child A, in 2004 or 2005. On 22 January 2018, following a trial by jury the appellant was convicted of a further offence of maintaining an unlawful sexual relationship with Child B, between 2000 and 2008.
The sentencing Judge imposed a notional head sentence of imprisonment for 12 years for each offence, coming to a cumulative notional head sentence of 24 years’ imprisonment. Applying the principle of totality, her Honour reduced this and fixed a sentence of imprisonment for 18 years, with a non-parole period of 12 years.
The appellant appealed against this sentence on the ground that “[t]he head sentence and non-parole period are manifestly excessive”.
Held per David AJ (Bampton and Parker JJ agreeing), dismissing the appeal:
1. The sentencing Judge’s starting point of 12 years’ imprisonment for each of the two sets of offending is not inappropriate (at [40]).
2. The sentencing Judge complied with the obligation under s 50(11) of the Criminal Law Consolidation Act, by sentencing the appellant on the evidentiary basis most favourable to the appellant (at [41]-[42]).
3. The sentencing Judge did not err in making both sentences cumulative, given that these were separate offences against two children, each separately groomed and abused whilst the appellant was in a position of trust. Any aspect of the cumulation of sentences amounting to a crushing period was addressed by the sentencing Judge applying the totality principle to reduce the notional cumulative head sentence (at [43]).
Criminal Law Consolidation Act 1935 (SA) s 50, referred to.
R v D (1997) 69 SASR 413, applied.

R v B, RP
[2019] SASCFC 9
Court of Criminal Appeal: Bampton and Parker JJ, David AJ

BAMPTON J: I agree with the reasons of David AJ. I would dismiss the appeal.
PARKER J: I would dismiss the appeal for the reasons given by David AJ.
DAVID AJ: This is an appeal against a sentence imposed for two counts of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”).
Background
On 1 December 2017, following a trial by jury the appellant was convicted of the offence…

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, RP

Details

AGLC: R v B, RP [2019] SASCFC 9
Case: [2019] SASCFC 9
Decision Date: 4 February 2019

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, R, who had been convicted of offences relating to the sexual abuse of two children, referred to as Child A and Child B. The appeal was heard by Bampton and Parker JJ and David AJ. The core of the dispute revolved around the appellant's argument that the sentencing judge had erred in imposing cumulative sentences for the offences against the two children, rather than concurrent sentences.

The legal issues before the court were whether the sentencing judge had properly exercised her discretion in ordering the sentences for the offences against Child A and Child B to be served cumulatively, and whether the overall sentence imposed was excessive, particularly in light of the totality principle. The appellant contended that the offending against Child B was less serious and should have been treated differently in sentencing.

The court considered the differences in the offending against each child, acknowledging that while both sets of conduct were serious, a comparison of their gravity was difficult. The court found that the sentencing judge's starting point of 12 years for each set of offences was not inappropriate. The court noted that the offences against Child B, which occurred over a period of approximately seven years from when she was about five years old until she was 12, involved a progression of sexual abuse, including digital penetration. The court concluded that the sentencing judge did not err in making the sentences cumulative, as these were separate offences against two distinct victims, each groomed and abused while the appellant was in a position of trust. The court found no basis for concurrency.

The appeal was dismissed. The court affirmed that the sentencing judge had properly applied the totality principle to reduce the notional cumulative head sentence, thereby addressing any concern that the period of imprisonment might be crushing.

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

I am also of the view that the Judge did not err in making both sentences cumulative. These were clearly separate offences against two children, each of whom were separately groomed and abused whilst the appellant was in a position of trust. There was no basis for concurrency and any aspect of the cumulation of sentences amounting to a crushing period was addressed by the sentencing Judge when applying the totality principle to reduce the notional cumulative head sentence. Conclusion I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Finally, he argues that any question of concurrency as opposed to cumulation of sentences is a discretionary matter for the sentencing Judge and, in this case, that discretion was properly exercised. Consideration It is clear that the two sets of offending have a number of fundamental differences. They are clearly set out in the recitation of facts. It would appear that the thrust of Mr Redford’s argument is that the offending against Child B was less serious than that against Child A and warranted a lesser sentence. To compare the seriousness of both sets of offending, which are both heinous and considered, amounts to an almost metaphysical exercise. However, if there is a difference in gravity, nevertheless her Honour’s starting point of 12 years for each is not inappropriate. In her sentencing remarks, when dealing with the behaviour against Child B, the sentencing Judge said the following:I turn to the circumstances of your offending in relation to child B. I have read the evidence that she gave at trial. It has not been suggested that I sentence you on the basis other than in accordance with that evidence and I do so.When she was very young her parents separated. During the time that she stayed with her father after that separation she would visit your home at Elizabeth Grove, mainly because you had a pool and to see your children. She was younger than your three children. There was an occasion when she stayed overnight that you sexually assaulted her the next morning. She was about five years of age. You said that you would make her breakfast and asked her to come to the kitchen. You told her to face the wall and stand still, which she did. You proceeded to put your hand on top of her pyjama top and rub all over her chest with your palm. You said to her 'Don't tell anyone, this is yours and my secret'. Indeed, those words were repeated to her almost every occasion when you offended against her until she was 12 years old.In November 2002 you moved to live at Munno Para. Child B had just turned seven. She visited there because you had a pool and she wanted to see your children. Most of the time she slept overnight. That occurred on weekends as well as during school holidays. She visited most often during summer and slept in your daughter's room. Your offending occurred on those occasions when she slept over, not on those occasions when she just visited for the day. Your offending did not occur on every sleepover but it occurred more often than not.At the start the nature of your offending behaviour was similar to what happened on the occasion at Elizabeth Grove. There were times when you were making breakfast with nobody else in the kitchen. You asked her to come over to you and told her to face the wall, which she did. In fact, all of your offending occurred in that same scenario.At the beginning you rubbed your hand over her chest, over her pyjamas. There were over five but less than 10 times when that happened.Then your offending progressed to you putting your hand underneath her top by going underneath the neck of her top. You would put your whole hand under her pyjama top and your hand would move around for a few minutes. That happened more than five but less than 10 times.When she was somewhere between seven and 10 years old your behaviour escalated to include your touching her vagina area over her pyjamas. That happened more than five but less than 10 times.You then started to touch her vaginal area under her pyjamas but over her knickers. She thought that happened less than five times and then you began touching her vagina under her knickers and therefore touching her skin.When she was about 11 or 12 you digitally penetrated her. You put at least one of your fingers in her vagina when she was facing the wall. You penetrated her for a few minutes. She believed that happened more than once but less than five times.Your behaviour stopped by the time she was 12 years old and in year 7. She visited for a short time after that and then moved with her family to a different area.(Emphasis added)