R v Bonnici - [2005] SASC 118

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BONNICI
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Besanko and The Honourable Justice Vanstone)
1 April 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON
Application by the Director of Public Prosecutions for leave to appeal against sentence - respondent found guilty of 5 counts of unlawful sexual intercourse - complainant aged 13 - trial judge imposed global penalty of imprisonment for 3 years and 6 months with non-parole period of 15 months - whether sentence is manifestly inadequate - trial judge's exercise of leniency unwarranted in the circumstances - sentence imposed was manifestly inadequate - leave to appeal granted - appeal allowed - sentence of trial judge set aside - sentence of imprisonment for 6 years with non-parole period of 3 years imposed.
R v Liddy (No 2) (2002) 84 SASR 231; R v Engert (1995) 84 A Crim R 67; R v Wiskich (2000) 207 LSJS 450; R v D (1997) 69 SASR 413, applied.

R v BONNICI
[2005] SASC 118
Court of Criminal Appeal: Duggan, Besanko and Vanstone JJ

DUGGAN J. This is an application by the Director of Public Prosecutions for leave to appeal against the sentence imposed on the respondent who was found guilty by a jury of five counts of unlawful sexual intercourse.
The offences took place between March 1999 and December 2000. The complainant turned 13 years of age shortly before the first offence. The prosecution also alleged a series of uncharged acts of a similar nature.
The respondent was sentenced in the District Court to a global penalty of imprisonment for three years and six months. A non-parole period of 15 months was imposed. Prior to sentencing the respondent pleaded guilty to two offences of breaching his bail agreement. He was convicted on each of these counts without penalty.
The Director of Public Prosecutions has submitted that the sentence imposed for the sexual offences is manifestly inadequate.
The respondent was 51 years of age at the time of the first offence. He is divorced and has three adult children. When the complainant met the respondent she was living with her mother, father and an intellectually handicapped sister. Her father and the respondent are Vietnam veterans who suffer from post-traumatic stress disorder. They met at a hospital where both were receiving treatment.
The complainant’s family were having difficulty coping at this time. Her mother was receiving treatment for cancer and it was in these circumstances that the respondent offered to assist the family by taking the complainant on outings. This led to the complainant staying overnight at the respondent’s home from time to time and it was on the occasion of the first such stay that the first offence charged in the…

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 Bonnici

Details

AGLC: R v Bonnici [2005] SASC 118
Case: [2005] SASC 118
Decision Date: 1 April 2005

CaseChat Overview and Summary

In the case of R v Bonnici, the Director of Public Prosecutions sought leave to appeal against the sentence imposed on the respondent, who had been found guilty of five counts of unlawful sexual intercourse with a 13-year-old complainant. The trial judge had imposed a global penalty of imprisonment for three years and six months, with a non-parole period of 15 months. The central issue before the court was whether the sentence was manifestly inadequate and if the trial judge's exercise of leniency was unwarranted in the circumstances. The court had to determine if the sentence imposed was indeed manifestly inadequate and whether it was necessary to set aside the trial judge's sentence and impose a harsher penalty.

The court examined the severity of the offences and the need for the sentence to reflect the gravity of the crimes. It considered the trial judge's exercise of leniency, noting that the circumstances did not warrant such a reduction in the sentence. The court found that the sentence imposed was manifestly inadequate in light of the nature of the offences and the need to protect the community and deter similar conduct. Consequently, the court granted leave to appeal and allowed the appeal, setting aside the trial judge's sentence and imposing a sentence of imprisonment for six years, with a non-parole period of three years.

The reasoning of the court was based on the need to ensure that the sentence reflected the seriousness of the crimes and provided sufficient punishment and deterrence. The court emphasised that the trial judge's leniency was unwarranted and that the imposed sentence did not adequately address the gravity of the offences. The court set aside the trial judge's sentence and imposed a harsher penalty to reflect the appropriate level of punishment and deterrence.

The final orders of the court were to grant leave to appeal, allow the appeal, set aside the trial judge's sentence, and impose a sentence of imprisonment for six years, with a non-parole period of three years.

Orders