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R v Brace

R v Brace

Case [2011] SASCFC 54 14 June 2011

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BRACE
[2011] SASCFC 54
Judgment of The Court of Criminal Appeal
(The Honourable Justice White, The Honourable Justice Kelly and The Honourable Justice Peek)
14 June 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
The appellant pleaded guilty to one offence of inciting an act of gross indecency and one offence of unlawful sexual intercourse - the Judge imposed (before giving credit for time in custody) cumulative sentences of imprisonment of three years (for unlawful sexual intercourse) and three months (for incitement) - a "co-accused" who was charged with an offence of unlawful sexual intercourse with the same victim and on the same occasion, as well as other offences, had previously been sentenced by a different Judge - the appellant appealed on three grounds: (1) the Judge failed to consider the sentence on the "co-accused" and apply parity; (2) the sentence was manifestly excessive; and (3) the Judge erred in failing to suspend.
Per White J (Kelly and Peek JJ agreeing): although the appellant and "co-accused" were each charged with unlawful sexual intercourse committed on the one occasion, their offences were not the same; the acts constituting the intercourse were different; and the circumstances of each differed - in addition, the "co-accused" was sentenced for other offences for which the appellant was not charged - accordingly, parity principles did not arise- sentence not manifestly excessive - no error in the Judge's refusal to suspend the sentence.
Criminal Law Consolidation Act 1935 (SA) s 58, s 49(3), s 63A; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 10; Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA) s 15, referred to.
Lowe the The Queen (1984) 154 CLR 606; Postiglione v The Queen (1977) 189 CLR 295; R v MacGowan (1986) 42 SASR 580, applied.
R v AB (No 2) (2008) 18 VR 391, discussed.
R v Major (1988) 70 SASR 488; R v Symonds [1999] SASC 217; R v Waugh (2005) 93 SASR 274; Wakely v Police (2003) 229 LSJS 327; R v Chamings [2009] SASC 82; Yardley v Betts (1979) 22 SASR 108; R v Couch [2008] SASC 207; R v Makevits [2006] SASC 73; R v Tassone [2011] SASCFC 7; R v Collins (1979) 21 SASR 38; R v Blecher (1981) 27 SASR 46; R v Thach and Chau [2010] SASFC 16, considered.

R v BRACE
[2011] SASCFC 54
Court of Criminal Appeal: White, Kelly and Peek JJ

WHITE J. Following his pleas, the appellant was sentenced in the District Court for two offences: inciting an act of gross indecency;[1] and…

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.

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Details

AGLC: R v Brace [2011] SASCFC 54
Case: [2011] SASCFC 54
Decision Date: 14 June 2011

CaseChat Overview and Summary

The appeal concerned a sentence imposed by a judge on the appellant, who had pleaded guilty to inciting an act of gross indecency and unlawful sexual intercourse. The judge imposed cumulative sentences of three years imprisonment for unlawful sexual intercourse and three months imprisonment for incitement, before accounting for time already spent in custody. The appellant argued that the judge failed to consider the sentence of a co-accused, that the sentence was manifestly excessive, and that the judge erred in not suspending the sentence.

The central legal issues before the appellate court were whether the sentencing judge had erred by failing to apply the principle of parity with a co-accused, whether the imposed sentence was manifestly excessive, and whether the judge was correct in refusing to suspend the sentence of imprisonment.

The court, comprising White, Kelly, and Peek JJ, found that the principle of parity did not apply. While both the appellant and the co-accused were charged with unlawful sexual intercourse on the same occasion, their specific offences and the circumstances surrounding them differed. Furthermore, the co-accused had been sentenced for additional offences for which the appellant was not charged. Consequently, the court held that the sentence was not manifestly excessive and that the judge had not erred in refusing to suspend the sentence.

The appeal was dismissed. However, the court remitted the matter to the sentencing judge to correct the recording of the sentences to accurately reflect the two separate sentences, their cumulative nature, and the calculation of the non-parole period.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J KELLY J (dissent) PEEK J

In my opinion, this ground of appeal has not been made out.Conclusion For the reasons given above I would dismiss the appeal. It is, however, appropriate to remit the matter to the Judge for him to correct (under s 9A of the CLSA) the recording of the sentences in the Report of Prisoner Tried. That Report should record the two separate sentences imposed (after giving credit in one for the time in custody and on home detention bail); record that one is to commence on the completion of service of the other; and record that the non‑parole period was fixed in respect of the total period to be served in custody. I agree with the orders proposed by White J and with his reasons. I agree that the appeal should be dismissed. I agree substantially with the reasons of White J.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J, PEEK J

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Citations

R v Brace [2011] SASCFC 54

Most Recent Citation

R v V, AJ [2012] SASCFC 10

Cases Citing This Decision

Evans v The Queen [2019] SASCFC 145
Citation 1 (Para 17)

…error by the Judge as the complainant’s intoxication in this case was not as serious as the facts and circumstances revealed in R v Brace .[1] [1] [2011] SASCFC 54.…
R v Ross [2018] SASCFC 120
Citation 2 (Para 33)

…This Court must send a strong message of deterrence where offenders exploit the vulnerability of immature complainants.[21] [21] R v Brace [2011] SASCFC 54 at [51].…
R v V, AJ [2012] SASCFC 10
Citation 3 (Para 4)

…have been permeated by error and that the maintaining of appropriate sentencing standards requires this Court to interfere.[15] [14] See, R v Brace [2011] SASCFC 54, [52]. [15] See, Dinsdale v The Queen (2000) 202 CLR 321; Everett v The Queen (1994) 181 CLR 295.…

See all citing cases →

Cases Cited

R v Major [2021] QDC 63
Citation 1 (Para 27)

…hom the Court would be sentencing for an offence of unlawful sexual intercourse arising out of the one incident.[5] [4] R v Major [1998] SASC 7089; (1998) 70 SASR 488 at 490, 497; R v Symonds [1999] SASC 217 at [22]; R v Waugh [2005] SASC 470 at [43]; (2005) 93 SASR 274 at 284. [5] By the time of the sentencing of Mr…
R v MacGowan [2012] SASCFC 138
Citation 2 (Para 39)

…should fall.[10] [6] Lowe v The Queen (1984) 154 CLR 606 at 610-1; Postiglione v The Queen (1997) 189 CLR 295 at 301. [7] Ibid. [8] R v MacGowan (1986) 42 SASR 580 at 582-3. [9] [2003] SASC 295; (2003) 229 LSJS 327. [10] Ibid at [34]-[35]; at 331.…
R v Tassone [2011] SASCFC 7
Citation 3 (Para 13)

…this kind.[14] [14] Yardley v Betts (1979) 22 SASR 108 at 110-1; R v Couch [2008] SASC 207 at [22]; R v Makevits [2006] SASC 73 at [44]; R v Tassone [2011] SASCFC 7 at [21].…
R v Thach [2010] SASCFC 16
Citation 4 (Para 15)

…nd Chau .[20] [16] [2008] VSCA 39; (2008) 18 VR 391. [17] Ibid at [51]; 406. [18] (1979) 21 SASR 38 at 42-3. [19] (1981) 27 SASR 46 at 47. [20] [2010] SASCFC 16 at [22], [103].…
R v CHAMINGS [2009] SASC 82
Citation 5 (Para 1)

…charged and he was to be sentenced for one offence with which Mr Wall was not charged. [11] R v MacGowan (1986) 42 SASR 580 at 582; R v Chamings [2009] SASC 82 at [9]. See also Lowe v The Queen (1984) 154 CLR 606 at 609, 623.…
R v Couch [2008] SASC 207
Citation 6 (Para 13)

…has said on many occasions that there is limited utility in comparisons of this kind.[14] [14] Yardley v Betts (1979) 22 SASR 108 at 110-1; R v Couch [2008] SASC 207 at [22]; R v Makevits [2006] SASC 73 at [44]; R v Tassone [2011] SASCFC 7 at [21].…
R v AB (No 2) [2008] VSCA 39
Citation 7 (Para 15)

…Various judgments of this Court reflect a similar view. See, for example, R v Collins ;[18] R v Belcher ;[19] and R v Thach and Chau .[20] [16] [2008] VSCA 39; (2008) 18 VR 391. [17] Ibid at [51]; 406. [18] (1979) 21 SASR 38 at 42-3. [19] (1981) 27 SASR 46 at 47. [20] [2010] SASCFC 16 at [22], [103].…
R v Makevits [2006] SASC 73
Citation 8 (Para 13)

…is limited utility in comparisons of this kind.[14] [14] Yardley v Betts (1979) 22 SASR 108 at 110-1; R v Couch [2008] SASC 207 at [22]; R v Makevits [2006] SASC 73 at [44]; R v Tassone [2011] SASCFC 7 at [21].…
R v Waugh [2005] SASC 470
Citation 9 (Para 27)

…arising out of the one incident.[5] [4] R v Major [1998] SASC 7089; (1998) 70 SASR 488 at 490, 497; R v Symonds [1999] SASC 217 at [22]; R v Waugh [2005] SASC 470 at [43]; (2005) 93 SASR 274 at 284. [5] By the time of the sentencing of Mr Wall, the appellant had pleaded guilty on his separate arraignment to his o…
Wakely v Police [2003] SASC 295
Citation 10

…ASR 580, applied. R v AB (No 2) (2008) 18 VR 391, discussed. R v Major (1988) 70 SASR 488; R v Symonds [1999] SASC 217; R v Waugh (2005) 93 SASR 274; Wakely v Police (2003) 229 LSJS 327; R v Chamings [2009] SASC 82; Yardley v Betts (1979) 22 SASR 108; R v Couch [2008] SASC 207; R v Makevits [2006] SASC 73; R v Tassone [2…
Postiglione v the Queen [1997] HCA 26
Citation 11

…; Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA) s 15, referred to. Lowe the The Queen (1984) 154 CLR 606; Postiglione v The Queen (1977) 189 CLR 295; R v MacGowan (1986) 42 SASR 580, applied. R v AB (No 2) (2008) 18 VR 391, discussed. R v Major (1988) 70 SASR 488; R v Symonds [1999] SASC 217; R v…
Lowe v R [1984] HCA 46
Citation 12 (Para 39)

…elation to a particular offence and offender is to identify a range within which the appropriate punishment should fall.[10] [6] Lowe v The Queen (1984) 154 CLR 606 at 610-1; Postiglione v The Queen (1997) 189 CLR 295 at 301. [7] Ibid. [8] R v MacGowan (1986) 42 SASR 580 at 582-3. [9] [2003] SASC 295; (2003) 229 LSJS…
The inappropriateness of this course is also illustrated by the decision in R v Major [1998] SASC 7089
Citation 13 (Para 27)

…of two offenders whom the Court would be sentencing for an offence of unlawful sexual intercourse arising out of the one incident.[5] [4] R v Major [1998] SASC 7089; (1998) 70 SASR 488 at 490, 497; R v Symonds [1999] SASC 217 at [22]; R v Waugh [2005] SASC 470 at [43]; (2005) 93 SASR 274 at 284. [5] By the time of…
Sentencing remarks by Judge Muscat dated 8 December 2023, p 16. The sentencing judge referred to R v Symonds [1999] SASC 217
Citation 14 (Para 27)

…ence of unlawful sexual intercourse arising out of the one incident.[5] [4] R v Major [1998] SASC 7089; (1998) 70 SASR 488 at 490, 497; R v Symonds [1999] SASC 217 at [22]; R v Waugh [2005] SASC 470 at [43]; (2005) 93 SASR 274 at 284. [5] By the time of the sentencing of Mr Wall, the appellant had pleaded guilty o…
Yardley v Betts (1979) 22 SASR 108
Citation 15 (Para 13)

…is committed vary markedly. This Court has said on many occasions that there is limited utility in comparisons of this kind.[14] [14] Yardley v Betts (1979) 22 SASR 108 at 110-1; R v Couch [2008] SASC 207 at [22]; R v Makevits [2006] SASC 73 at [44]; R v Tassone [2011] SASCFC 7 at [21].…

Legislation Cited

Criminal Law (Sentencing) Act 1988 (SA) 18A
2 mentions (from Para 5)
Criminal Law Consolidation Act 1935 (SA) 58
2 mentions (from Para 1)
Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA) 15
2 mentions (from Para 14)