R v BOTTERILL - [2011] SASCFC 47

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BOTTERILL
[2011] SASCFC 47
Judgment of The Court of Criminal Appeal
(The Honourable Justice White, The Honourable Justice Kelly and The Honourable Justice Peek)
23 May 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence – appellant convicted of one count of indecent assault and sentenced to 14 months imprisonment with a non-parole period of eight months – where victim the appellant’s step-granddaughter who was 12 or 13 years of age – offending occurred in the appellant’s home – appellant 67 years of age and in receipt of disability pension – appellant ostracised by family as a result of offending – appellant had no prior convictions – whether sentencing Judge erred in placing too much weight on appellant’s failure to plead guilty and lack of contrition – whether sentence manifestly excessive – whether sentencing Judge erred in failing to suspend the term of imprisonment.
Held: (Kelly J, White and Peek JJ concurring): Appeal dismissed – serious offence against a child of 12 or 13 years involving a breach of trust called for a substantial sentence of immediate imprisonment to reflect general deterrence – sentencing Judge did not place inappropriate emphasis on the failure to plead guilty and lack of contrition – sentence not manifestly excessive – sentencing Judge did not err in failing to suspend the term of imprisonment.
Criminal Law Consolidation Act 1935 (SA) s 56; Criminal Law (Sentencing) Act 1988 (SA) s 10(4), referred to.
R v Horstmann [2010] SASC 103, considered.

R v BOTTERILL
[2011] SASCFC 47
Court of Criminal Appeal: White, Kelly and Peek JJ

WHITE J. I would dismiss the appeal. I agree with the reasons of Kelly J.
KELLY J. This is an appeal against sentence.
After a trial by jury on three counts of a sexual nature the appellant was convicted of one offence of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). That offence carries a maximum penalty of eight years imprisonment. At his trial the appellant was found not guilty of one count of persistent sexual exploitation of a child. The jury was unable to reach a verdict in relation to one count of unlawful sexual intercourse with the same victim.
On 22 October 2010 the District Court Judge sentenced the appellant to 14 months imprisonment and set a non‑parole period of eight months. The Judge declined to suspend the sentence.
On appeal the appellant contends that the sentence was manifestly excessive and that good reason should have been found to suspend the sentence. Particular complaint was made of some remarks which the sentencing Judge made during submissions concerning the appellant’s failure to plead guilty and the lack of contrition shown by the appellant.
The Facts
The victim was the step‑granddaughter of the appellant. The offence of indecent assault occurred at the home of the victim’s grandmother…

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 BOTTERILL

Details

AGLC: R v Botterill [2011] SASCFC 47
Case: [2011] SASCFC 47
Decision Date: 23 May 2011

CaseChat Overview and Summary

The appellant, R v Botterill, appealed against a sentence imposed by a sentencing judge following his conviction for indecent assault. The victim was the appellant's step-granddaughter, aged 12 or 13, and the offence occurred in the appellant's home. The appellant, aged 67 and in receipt of a disability pension, argued that the 14-month imprisonment sentence with an eight-month non-parole period was manifestly excessive. He also contended that the sentencing judge placed undue weight on his failure to plead guilty and lack of contrition, and erred in not suspending the term of imprisonment. The appeal was heard by Kelly, White, and Peek JJ of the Supreme Court of South Australia.

The central legal issues before the Full Court were whether the sentencing judge erred in placing too much emphasis on the appellant's failure to plead guilty and his lack of contrition, whether the imposed sentence was manifestly excessive, and whether the judge was correct in failing to suspend the term of imprisonment. The appellant argued that these factors should have led to a reduced sentence or a suspended sentence, particularly given his age, personal circumstances, and lack of prior convictions.

The Full Court dismissed the appeal, holding that the serious nature of the offence against a child, involving a breach of trust, warranted a substantial sentence of immediate imprisonment to serve the purpose of general deterrence. The Court found that the sentencing judge did not place inappropriate emphasis on the appellant's failure to plead guilty and lack of contrition, noting that these were relevant considerations in assessing the appellant's attitude towards his conduct and the likelihood of reoffending. The Court concluded that the sentence was not manifestly excessive and that the sentencing judge did not err in failing to suspend the term of imprisonment.

Orders

Orders of the court

I would dismiss this appeal

Background

Background to the litigation

On appeal the appellant contends that the sentence was manifestly excessive and that good reason should have been found to suspend the sentence. Particular complaint was made of some remarks which the sentencing Judge made during submissions concerning the appellant’s failure to plead guilty and the lack of contrition shown by the appellant. The Facts The victim was the step‑granddaughter of the appellant. The offence of indecent assault occurred at the home of the victim’s grandmother and the appellant in Elizabeth South. The exact date of the offending was never clarified but the evidence at trial suggested that it occurred sometime in 2002 or 2003 when the child was 12 or 13 years of age. The appellant had access to the victim by virtue of the fact that his wife, the victim’s maternal grandmother, often cared for the victim after school and during school holidays. The indecent assault occurred while the victim was sitting on the appellant’s lap at the kitchen table. When no other person was present the appellant rubbed the victim’s vagina underneath her clothes and made remarks to the effect of “you’re growing pubes”. The Sentencing Judge’s Remarks The Judge noted the appellant’s personal circumstances including the fact he was 67 years of age, the fact that he was in receipt of a disability pension on account of injuries to his back and neck, and the fact that this offending has caused a rift within his family to the extent that the appellant has been ostracised socially by all of his family except for his brother. The appellant had no prior convictions. During the course of sentencing submissions the following exchange occurred between the sentencing Judge and trial counsel:HIS HONOUR: He hasn’t admitted his guilt, he has denied his guilt, he has put this girl through the ordeal of giving evidence. Has he learned from his conduct? I don’t know. It would seem not on the face of the jury’s verdict?MR STEWART: Can I ask how your Honour would take that view from the jury’s verdict?HIS HONOUR: They found him guilty of indecent assault.MR STEWART: And not guilty of more serious offences.HIS HONOUR: Theoretically, why hasn’t he apologised for the indecent assault that he perpetrated against this girl?MR STEWART: He denies his guilt.HIS HONOUR: That’s right, he has not admitted his guilt in relation to a serious sexual offence committed against a 12 or 13-year-old child.MR STEWART: That’s correct.HIS HONOUR: So to what extent has he learned from his conduct? There is no evidence of contrition or remorse.MR STEWART: There is no evidence of contrition or remorse, I accept that, and obviously that’s taken into account because he gets no reduction in sentence for the fact that he took his course to trial …That doesn’t stop your Honour from embarking on an inquiry to see if there are good reasons to suspend a sentence. …HIS HONOUR: I would be more confident he would not reoffend if he put his hand up and said ‘I did it’. But as I said there is no evidence of contrition or remorse.MR STEWART: No, I accept that. … There’s obvious limits to what counsel would submit on sentence when there’s an appeal at large.HIS HONOUR: Do you want to get instructions from him as to whether he wants to apologise to this young girl?MR STEWART: I don’t, that would be an imprudent course for me to take.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J (dissent) KELLY J (dissent) PEEK J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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