R v Betts - [2009] SASC 305

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BETTS
[2009] SASC 305
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice Kourakis)
24 September 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Application for permission to appeal against sentence – applicant found guilty by jury of one count of rape and one count of attempted rape – applicant sentenced to a term of seven years’ imprisonment – Judge fixed non-parole period of four years and six months – whether sentence manifestly excessive – whether Judge gave proper weight to applicant’s aboriginality, background and intoxication – whether Judge gave proper weight to applicant’s lack of remorse.
HELD: Permission to appeal refused - not reasonably arguable that sentence manifestly excessive or that Judge erred in any respect.
R v Sumner & Sumner [2007] SASC 379, discussed.

R v BETTS
[2009] SASC 305
Court of Criminal Appeal: Duggan, Sulan and Kourakis JJ

DUGGAN J (ex tempore): This is an application for permission to appeal against sentence. The applicant was found guilty by verdict of a jury of one count of rape and one count of attempted rape.
The victim had met the applicant on one occasion before the incident, but did not know him by name.
On the occasion of the offences, the applicant arrived at the house of an acquaintance of both the victim and the applicant. The applicant, the victim and others then took part in a drinking session. The applicant became grossly intoxicated and consumed drugs during the episode at the home. The victim was intoxicated to a lesser extent.
The applicant made sexual advances to the victim and the victim rebuffed him. When the other people eventually left the premises, the applicant attacked the victim. He took off her clothes, attempted an act of fellatio and then had vaginal sexual intercourse with her. Eventually the victim ran from the house. She had made a previous attempt to leave, only to be grabbed by the applicant and then taken back to the bedroom.
The incident has had a significant effect on the victim. She has undergone counselling and she explained in her victim impact statement that her lifestyle has changed considerably as a result of the incident.
The applicant was sentenced to imprisonment for seven years with a non‑parole period of four years and six months. He was refused permission to appeal by a single judge and now applies to this Court for permission to appeal.
The proposed grounds of appeal are set out in a document which was forwarded to the court. The first ground claims that the sentence is manifestly excessive. The other grounds refer to specific aspects of the sentencing which will become obvious in the course of these remarks.
According to the submissions made on behalf of the applicant, the non‑parole period imposed by the court was manifestly excessive when compared with…

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 Betts

Details

AGLC: R v Betts [2009] SASC 305
Case: [2009] SASC 305
Decision Date: 24 September 2009

CaseChat Overview and Summary

The applicant, Betts, was found guilty by a jury of one count of rape and one count of attempted rape. The case was heard in the Court of Criminal Appeal where Betts sought permission to appeal against his sentence. Betts was sentenced to a term of seven years’ imprisonment, with a non-parole period of four years and six months. The applicant contested the sentence, claiming it was manifestly excessive, and argued that the sentencing judge did not adequately consider his Aboriginality, background, intoxication, and lack of remorse.

The court examined whether the sentence was manifestly excessive, considering the principles of proportionality and the nature of the crimes committed. Additionally, the court assessed whether the sentencing judge appropriately weighed the mitigating factors of the applicant’s Aboriginality, background, and state of intoxication at the time of the offences. The court also scrutinised whether the sentencing judge gave sufficient consideration to the applicant’s lack of remorse, which is a significant factor in determining the severity of the sentence.

The Court of Criminal Appeal concluded that the sentence was not manifestly excessive, given the seriousness of the crimes. The court found that the sentencing judge had appropriately considered the mitigating factors, including the applicant's Aboriginality, background, and state of intoxication. However, the court noted that the sentencing judge did not adequately address the applicant’s lack of remorse, which could have influenced the severity of the sentence. Despite this, the overall sentence was deemed proportionate to the crimes committed.

The court ultimately denied the applicant permission to appeal against his sentence, affirming the original sentence imposed by the sentencing judge.

Orders