(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby)
30 November 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
Crown appeal against sentence.
The respondent pleaded guilty to three counts of indecent assault and two counts of aggravated indecent assault which had occurred in 2019 and 2020. The maximum penalty for the indecent assault offending was imprisonment for eight years, and for the aggravated indecent assault offending, imprisonment for 10 years (as one complainant was under 14 years). At the time of sentencing, the respondent was 77 years.
The sentencing judge imposed a conviction on all counts but otherwise discharged the respondent without imposing any other penalty on condition that he enter into a bond in the sum of $1,000 to be of good behaviour for three years where the first year was to be subject to supervision by a community corrections officer.
An intervention order was made prohibiting contact by the respondent with the complainants, their elder sister and mother.
The Director appealed against sentence on the basis that the sentence imposed was manifestly inadequate.
The Court held (refusing permission to appeal against sentence):
1.Whilst the sentence imposed by the sentencing judge was too low this is not an appropriate case in which to grant permission to appeal.
2.The respondent ought not be twice vexed where, before the sentencing judge, counsel for the Director conceded that imposing a bond was within the judge’s sentencing discretion. This and the respondent’s age weigh against a grant of permission.
[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 Beaumont [2023] SASCA 128
Case
[2023] SASCA 128
Decision Date
CaseChat Overview and Summary
This matter concerned an application by the Director of Public Prosecutions for leave to appeal against the sentence imposed on the respondent, R v Beaumont, in the Supreme Court of South Australia. The Director contended that the sentence was manifestly inadequate.
The central legal issue before the Full Court of the Supreme Court of South Australia was whether to grant the Director leave to appeal the sentence. This required the Court to consider the principles governing Crown appeals against sentence, particularly in circumstances where the respondent was elderly and the Director's approach had shifted from that taken at the original sentencing hearing.
The Court noted that while the sentence imposed was indeed manifestly inadequate, it was not so low as to warrant intervention, especially when weighed against the principle of double jeopardy and the respondent's advanced age of nearly 78 years. The Court also found it relevant that the Director's current stance represented a significant departure from the position adopted before the sentencing judge. Consequently, the Court concluded that it was not appropriate to grant leave to appeal for the purpose of imposing immediate imprisonment.
The application for permission to appeal sentence was dismissed.
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
As well, though the intimation of the prosecutor did not bind the sentencing court, and though it was submitted that incarceration was required, it was never suggested that a bond for this 77-year-old respondent went beyond the proper scope of the judge’s sentencing discretion. It is in these circumstances clear that the approach now taken by the Director on this application for permission to appeal sentence represents a marked shift from that which was taken before the sentencing judge. That shift is relevant to whether permission should be granted. It is an important factor weighing against the grant of permission to appeal.Conclusion In the particular circumstances of this case, the Director has not demonstrated that it is necessary for this Court to intervene. Whilst the sentence is manifestly inadequate, it is not so low as to justify intervention and outweigh considerations associated with double jeopardy. The respondent is now nearly 78 years. It is not appropriate to grant permission to appeal sentence for the purpose of exposing him to immediate imprisonment. The application for permission to appeal should be dismissed.