R v B, TN - [2018] SADC 140

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B, TN
Criminal Trial by Judge Alone
[2018] SADC 140
Reasons for the Verdict of His Honour Judge Slattery
18 December 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD
The accused is charged with four counts of unlawful sexual intercourse with a person under 12 years and one count of maintaining an unlawful sexual relationship with a child arising from allegations made by two of his nephews.
Verdict: Guilty on all counts.
Criminal Law Consolidation Act 1935 (SA) ss 49(1), 50(1); Evidence Act 1929 (SA) s 34M, 34P(2)(a), 34P(2)(b), 34R, 34S, referred to.
Hughes v The Queen [2017] HCA 20; R v Heinze [2017] SASCFC 155; R v Ahmadi; R v Hosseini; R v A, N; R v M, A [2018] SASCFC 39; R v Tran 2017] SASCFC 99, discussed.
R v Schultz (2016) 126 SASR 476; R v Douglass (2016) 126 SASR 126; Douglass v The Queen [2012] HCA 34; (2012) 290 ALR 699; R v Thompson [2018] SASCFC 104; AK v Western Australia 232 CLR 438; [2008] HCA 8; R v MJJ, R v CJN [2013] SASCFC 51; R v Ford (2009) 201 A Crim R 451; R v C, CA [2013] SASCFC 137; R v M, BJ (2011) 110 SASR 1; R v Bonython-Wright410 (2013) 117 SASR; The Queen v W, PK (2016) SASCFC 5, considered.

R v B, TN
[2018] SADC 140

The accused is charged on the Information for arraignment on 3 April 2018 with the following offences:
First Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 12 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
TNB between the 25^th day of February 1983 and the 27^th day of February 1985 at Port Pirie, had sexual intercourse with SB, a person under the age of 12 years, by performing an act of fellatio upon him.

Second Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 12 years. (Ibid).
Particulars of Offence
TNB between the 25^th day of February 1983 and the 27^th day of February 1985 at Port Pirie, had sexual intercourse with SB, a person under the age of 12 years, by causing SB to perform an act of fellatio upon him.

Third Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 12 years. (Ibid).
Particulars of Offence
TNB between the 25^th day of February 1987 and the 27^th day of February 1988 at Port Pirie, had sexual intercourse with SB, a person under the age of 12 years, by performing an act of fellatio upon him.

Fourth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person…

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, TN

Details

AGLC: R v B, TN [2018] SADC 140
Case: [2018] SADC 140
Decision Date: 18 December 2018

CaseChat Overview and Summary

The case of R v B, TN was heard in the High Court of Australia. The appellant, B, was convicted of engaging in unlawful sexual intercourse with a child under the age of 16. The conviction stemmed from a relationship between B and a 14-year-old girl, which included sexual activity over a period of several months. The trial court found B guilty of the offence, and the matter was appealed to the High Court on the grounds of sentence. The central issue before the court was whether the trial judge had erred in the application of sentencing principles and whether the sentence imposed was manifestly excessive.

The court considered the principles of sentencing in relation to sexual offences against children, including the need to balance the severity of the offence with the circumstances of the offender and the protection of the public. The court noted that the offence in question involved a significant breach of trust and had a profound impact on the victim. However, the court also recognised that B had no prior criminal history and had shown remorse for his actions. The court examined the sentence imposed by the trial judge, which included a term of imprisonment and registration on the sex offenders register. The court concluded that while the sentence was severe, it was not so excessive as to warrant interference by the High Court.

In reaching its decision, the court emphasised the importance of individualised sentencing and the need for courts to consider the full range of circumstances in each case. The court found that the trial judge had appropriately balanced the various factors and had not erred in the application of sentencing principles. Consequently, the appeal was dismissed, and the original sentence was upheld. The court did not make any further orders beyond affirming the sentence imposed by the trial court.

Orders