R v BEER
[2007] SASC 353
•2 October 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BEER
[2007] SASC 353
Judgment of The Honourable Justice Gray
2 October 2007
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 - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER
Application for permission to appeal against sentence - applicant convicted of one count of unlawful sexual intercourse and three counts of indecent assault - applicant sentenced to a head sentence of six and a half years with a three year non-parole period - completion of the application for legal aid was delayed due to applicant suffering from illness - applicant had no previous convictions - applicant aged 61 years at the time of sentencing - applicant is carer for his disabled sister - whether extension of time within which to file application for permission to appeal should be granted - whether it is reasonably arguable that the sentencing Judge failed to have adequate regard to the personal circumstances of the applicant - Held: permission granted to file application for leave to appeal out of time - permission granted to appeal against sentence.
Criminal Law Consolidation Act 1935 (SA) s 352 and s 357; Criminal Appeal Rules 1996 (SA) r 4A, referred to.
R v Raad (2006) 15 VR 338; R v Blick (1999) 108 A Crim R 525; R v Mai [2000] VSCA 184, considered.
R v BEER
[2007] SASC 353Criminal
GRAY J
This is an application for permission to appeal against sentence. The applicant also seeks an extension of time within which to seek permission to appeal.
On 7 June 2007 the applicant was convicted of one count of unlawful sexual intercourse and three counts of indecent assault. The matter was adjourned to 5 July 2007 for sentencing submissions. On 16 July 2007 the applicant was sentenced to a head sentence of six and a half years with a three year non-parole period.
The applicant’s rights of appeal are set out in section 352(1) of the Criminal Law Consolidation Act 1935 (SA). An appeal lies as of right on a question of law alone, and with leave on any other ground.
Section 357 of the Act provides, inter alia, that an application for permission to appeal must be made in accordance with the appropriate rules of court. The time fixed by Rule 4A of the Supreme Court Criminal Appeal Rules 1996 (SA) for the lodging of a notice of appeal or notice of application for leave to appeal is within 21 days of the date of conviction, sentence or a decision antecedent to trial.
The applicant’s solicitor gave evidence by affidavit that he was instructed to appeal against sentence. He was instructed to apply to the Legal Services Commission for a grant of legal aid to conduct the appeal, as a consequence of the applicant’s financial resources being exhausted by the trial. On 24 July 2007, the applicant’s solicitor’s office sent a letter to the applicant at Yatala Labour Prison enclosing an application for legal aid. The applicant was asked to complete the legal aid form and return it to his solicitor’s office to forward to the Legal Services Commission.
The completion of the application for legal aid was delayed as a result of the applicant suffering from cardiac concerns. On 26 July 2007 his solicitor was informed by authorities at Yatala Labour Prison that he had been hospitalised in the hospital unit of the prison for the purposes of treatment of his condition, which included a medical procedure at the Royal Adelaide Hospital.
On 30 July 2007, the applicant’s solicitors were informed by Yatala Labour Prison that the letter that they sent to the applicant on 24 July 2007 had not been delivered to the applicant and that they were not aware of its location. On 30 July 2007 another solicitor from the same office attended at Yatala Labour Prison to obtain the applicant’s instructions in respect of the legal aid application. The information obtained was then forwarded to the Legal Services Commission on 30 and 31 July 2007. Fee Remission Certificates were received by the applicant’s solicitors on 1 August 2007. The applicant’s counsel was briefed on 2 August 2007. A notice of permission to appeal against sentence was filed on 10 August 2007.
In all the circumstances, I consider that the applicant took reasonable steps to bring this application before the Court in a timely manner. I grant the applicant permission to file the appeal against sentence out of time.
Application for Leave to Appeal
The applicant has submitted that the sentence imposed was, in all the circumstances, manifestly excessive.
On hearing an application for permission to appeal, the court has a discretion which is not to be fettered by an inflexible rule. A majority of the Court of Appeal of Victoria in Raad[1] recently confirmed that, as a general rule, a single Judge should grant permission if there is a reasonably arguable ground, even where the Judge considers that it would probably not be made out when it was fully argued or that the appeal Court would think that, even though it was made out, no different sentence should be imposed.
[1] R v Raad (2006) 15 VR 338. See also R v Blick (1999) 108 A Crim R 525; R v Mai [2000] VSCA 184 at [21].
The applicant’s victim in each instance was the same teenage boy, aged between 13 and 15 years at the time of the offending. The sentencing Judge remarked that the applicant befriended the victim and gradually groomed him for sexual purposes by means of gifts, rides in a motor vehicle and other acts of friendship, including the promise of a gift of a motorbike. The applicant introduced the victim to matters of sex by means of a sex toy and pornographic videos and magazines. Both the victim and his family had trusted the applicant as an adult friend who shared a mutual interest in CB radios, and the applicant betrayed that trust by committing indecent assault and unlawful sexual intercourse against the victim.
The applicant has no previous convictions, and was accepted to be of previous good character. He was aged 61 years at the time of sentencing. He retired in 1988 to care for his father, and then after his father’s death cared for his mother. Throughout that time, and more particularly, since his mother’s death in 1996, he has cared for his sister. His sister is disabled and requires special care.
Counsel for the applicant submitted that the sentencing Judge had failed to have adequate regard to the personal circumstances of the applicant. His age, good record, and prior good character were said to be of particular relevance. In the circumstances I consider that it is appropriate to grant permission to appeal against sentence.