R v B, RWK

Case [2005] SASC 84


SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v B, RWK

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Vanstone)

15 March 2005

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE

The appellant was convicted on three counts of unlawful sexual intercourse with a person of the age of twelve years - the trial Judge imposed a head sentence of seven years' imprisonment with a non-parole period of five years - on appeal - whether the sentence was appropriate in all of the circumstances - discussion of factors that will operate to reduce sentence - discussion of the principle of totality - appeal dismissed.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v D (1997) 69 SASR 413, discussed.
R v Major (1998) 70 SASR 488; Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; Johnson v The Queen (2004) 205 ALR 346; R v Symonds [1999] SASC 217; R v Bennett [2005] SASC 55; R v Place (2002) 81 SASR 395; Pearce v The Queen (1998) 194 CLR 610, considered.

R v B, RWK
[2005] SASC 84

Court of Criminal Appeal:  Doyle CJ, Duggan and Vanstone JJ

  1. DOYLE CJ:           This is an appeal against sentence, brought by leave.

  2. After a trial in the District Court the appellant was found guilty of three offences.  Each was an offence of unlawful sexual intercourse with a person of the age of 12 years. 

  3. The first offence was committed between August and October 1999, and involved the appellant inserting his finger into the vagina of the victim.  The second offence was committed on a separate occasion, but not long after the first offence.  It involved an act of cunnilingus.  The third offence was committed between about October 1999 and 2001, and involved the appellant inserting his finger into the vagina of the victim.

  4. The victim in each case was a girl aged 12 years, a relative of the appellant.  By the time of the third offence, she might have been 13 or 14 years old.

  5. Each offence was committed at the home of the victim, where the appellant was living with his sister and her children.  The circumstances of each offence are of an unfortunately common kind in such cases.  The appellant was at the family home in the company of the victim and took an opportunity that presented itself to commit the offences.

  6. The victim gave evidence of similar conduct by the appellant, not the subject of charges, extending over a period from 1991 until about 2001.  The offences charged came towards the end of that lengthy period.  The victim referred to about 17 incidents in all, but did not claim to have dealt…

Continue reading R v B, RWK

Sign in free to access the full text

Details
AGLC
R v B, RWK [2005] SASC 84
Case
[2005] SASC 84
Decision Date

CaseChat Overview and Summary

The appellant was convicted of three counts of unlawful sexual intercourse with a minor, specifically a twelve-year-old individual. The trial judge imposed a head sentence of seven years' imprisonment with a non-parole period of five years. The appellant appealed the sentence, challenging its appropriateness in light of the circumstances of the case. The appeal was heard by the court, which was tasked with reviewing the sentence imposed by the trial judge and determining whether it was suitable given the facts of the case.

The legal issues before the court were whether the sentence imposed by the trial judge was appropriate and whether the factors that would typically lead to a reduced sentence were adequately considered. The court was also required to examine the principle of totality, which involves assessing the cumulative effect of multiple sentences imposed on a defendant for various offences. The court considered these issues to determine if the appeal against the sentence should be upheld.

In dismissing the appeal, the court found that the trial judge had properly considered the relevant factors in imposing the sentence. The court emphasised that the sentence was appropriate in the circumstances of the case, taking into account the gravity of the offences and the need to protect the community. The principle of totality was also examined, and the court determined that it did not warrant a reduction in the sentence imposed. Consequently, the appeal against the sentence was dismissed.

The court's decision to dismiss the appeal resulted in the appellant's original sentence standing. The appellant was to serve seven years' imprisonment with a non-parole period of five years for the three counts of unlawful sexual intercourse with a minor.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.