(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.
Court of Criminal Appeal: Doyle CJ, Duggan and Vanstone JJ
DOYLE CJ: This is an appeal against sentence, brought by leave.
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.
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.
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.
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.
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…
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.
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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.