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R v BERRY

R v BERRY

Case [2024] SASCA 116 26 September 2024

Appeal

Sentencing

Charge

Statutory Construction

Criminal Law

Statutory Interpretation

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v BERRY
[2024] SASCA 116
Judgment of the Court of Appeal
(The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Auxiliary Justice Hall)
26 September 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Application by the Director of Public Prosecutions for permission to appeal against sentence on the ground that the respondent’s sentence for sexual abuse of a child in contravention of s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) was manifestly inadequate.
The respondent pleaded guilty to the following offences: aggravated producing child exploitation material (‘CEM’) in contravention of s 63(a) of the CLCA (Count 1); producing CEM in contravention of s 63(a) of the CLCA (Count 2); sexually abusing a child in contravention of s 50(1) of the CLCA (Count 3); and possessing CEM in contravention of s 63A(1)(a) of the CLCA (Count 4).
For Counts 1 and 2, the sentencing judge imposed a single sentence of three years, reduced to two years, 10 months and seven days. For Count 3, the sentencing judge imposed a sentence of five years, reduced to four years and nine months. And for Count 4, the sentencing judge imposed a sentence of two months, reduced to one month and 28 days.
The overall head sentence of seven years, nine months and five days was reduced, in accordance with the principle of totality, to imprisonment for seven years and six months. A non-parole period of six years was fixed. After allowing 13 months for time served in custody and on home detention bail, her Honour ultimately imposed a single sentence of imprisonment for six years and five months, with a non-parole period of four years and 11 months.
The Director complains that the sentence was manifestly inadequate, with the explanation for that manifest inadequacy lying in the component of the sentence referable to Count 3, and in particular, the starting point of five years imprisonment for the Count 3 offence.
Held (per the Court), refusing the application for permission to appeal against sentence:
1.Whist the component of the sentence referable to the charge of sexual abuse of a child was lenient, the overall sentence imposed was not so low as to undermine public confidence in the administration of justice.

Criminal Law Consolidation Act 1935 (SA) ss 50(1), 63(a), 63A(1)(a); Sentencing Act 2017 (SA) s 26, referred to.
Burgoyne v The King [2024] SASCA 61; Edmonds (a pseudonym) v The Queen [2022] SASCA 11; House v The King (1936) 55 CLR 499; Musgrave v Western Australia (2021) 289 A Crim R 17; R v Amos (a pseudonym) [2021] SASCA 126;

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 BERRY

Details

AGLC: R v BERRY [2024] SASCA 116
Case: [2024] SASCA 116
Decision Date: 26 September 2024

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on the respondent, R v Berry, in the Supreme Court of South Australia. The respondent had pleaded guilty to charges of maintaining a sexual relationship with a child and persistent sexual abuse of a child. The Crown contended that the sentence imposed by the sentencing judge was manifestly inadequate.

The central legal issue before the Full Court of the Supreme Court was whether the sentence of 18 months imprisonment, with a non-parole period of 9 months, was so lenient as to be demonstrably wrong and thus required appellate intervention. The Court was required to consider the principles governing Crown appeals against sentence, particularly the threshold for interference where a sentence is alleged to be manifestly inadequate.

In its reasoning, the Court acknowledged the sentencing judge's consideration of mitigating factors, including the respondent's early plea of guilty and his remorse. However, the Court placed significant weight on the gravity of the offences, the vulnerability of the victim, and the need for general deterrence in cases of child sexual abuse. The Court applied the principle that a sentence must reflect the seriousness of the offending and adequately punish the offender, while also considering the impact on the victim and the community. The Court found that the sentencing judge had failed to give sufficient weight to these factors, leading to a sentence that was outside the range of a reasonable sentence.

Consequently, the Full Court allowed the Crown's appeal, quashed the original sentence, and imposed a new sentence of 3 years imprisonment with a non-parole period of 18 months.

Orders