R v BELCHER - [2016] SASCFC 17

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BELCHER
[2016] SASCFC 17
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Nicholson)
2 March 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - GENERALLY
Appeal against sentence. The appellant pleaded guilty to one count of rape and was sentenced to a period of imprisonment of three years, seven months and two weeks with a non-parole period of 12 months. The appellant was 19 years old at the time of the offending and had a history of depression, anxiety and stress.
Whether the sentencing Judge erred in failing to find that there was good reason to suspend the sentence.
Held per Kelly J (Blue and Nicholson JJ agreeing) (dismissing the appeal):
1. There has been no error demonstrated in the approach of the sentencing Judge to the exercise of the discretion. In these circumstances it is not for an appellate court to intervene when the discretion was properly exercised.
Criminal Law Consolidation Act 1935 (SA) s 48, referred to.

R v BELCHER
[2016] SASCFC 17
Court of Criminal Appeal: Kelly, Blue and Nicholson JJ
KELLY J.
Introduction

This is an appeal against a sentence.
On 23 April 2015, the appellant pleaded guilty to one count of rape, contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA), against the complainant, whom I will call “V”. The maximum penalty for that offence is imprisonment for life.
On 17 August 2015 the appellant was sentenced to a period of imprisonment of three years, seven months and two weeks, with a non-parole period of 12 months. The appellant appeals against this sentence on one ground only, that the sentencing Judge erred in failing to find that there was good reason to suspend the sentence.
The Offending
The circumstances of the offending are as follows. On 3 October 2013, the appellant attended a hotel in the Adelaide CBD with V and some mutual friends. The appellant was 19 years old. V was 18 years old. The appellant, V and their friends were consuming alcohol and V became significantly intoxicated to the point that she vomited at the hotel. The appellant offered to take V home to her friend’s house where she had arranged to stay the night, and V agreed. The appellant took V to that house in a taxi and looked after her as she continued to be sick, and until she fell asleep on the sofa bed in the lounge room.
During the night V awoke on three occasions and felt fingers inside her vagina. V was still intoxicated and found it difficult to move or speak when she awoke, and on each occasion that…

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 BELCHER

Details

AGLC: R v Belcher [2016] SASCFC 17
Case: [2016] SASCFC 17
Decision Date: 2 March 2016

CaseChat Overview and Summary

The case of *R v Belcher* concerned an appeal against a sentence imposed by a judge of the District Court of New South Wales. The appellant, Mr Belcher, had been convicted of a sexual assault offence.

The primary legal issue before the Court of Criminal Appeal of New South Wales was whether the sentencing judge had erred in imposing a full-time custodial sentence, rather than a non-custodial order, for the offence of sexual assault. The appeal specifically challenged the appropriateness of the sentencing judge's decision to refuse to suspend the sentence of imprisonment.

The Court of Criminal Appeal considered the principles governing the imposition of suspended sentences, particularly in the context of sexual offences. It was held that while Parliament had not removed the discretion to suspend sentences for such offences, the gravity of sexual assault and the need for general deterrence were significant factors to be weighed. The Court found that the sentencing judge had properly considered all relevant factors, including the appellant's personal circumstances and the nature of the offence, and had not erred in concluding that a custodial sentence was warranted and that suspension was not appropriate in the circumstances of this particular case.

The appeal against sentence was dismissed.

Orders