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R v BRADLEY

R v BRADLEY

Case [2024] SASCA 56 9 May 2024

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v BRADLEY
[2024] SASCA 56
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)
9 May 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The respondent sexually abused a 16-year-old female, Ms L, and then approximately 20 years later, sexually abused a 15-year-old male, Mr A.
The respondent pleaded guilty to two counts of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). For the offending against Ms L, the respondent was sentenced to one year, 10 months and 25 days imprisonment. For the offending against Mr A, the respondent was sentenced to five years and three months imprisonment. The sentences were to be served cumulatively, with a total sentence of seven years, one month and 25 days imposed, with a fixed non-parole period of five years, eight months and 20 days.
The appellant seeks permission to appeal on the basis the sentences imposed for each count are manifestly inadequate.
Held, per the Court, refusing permission to appeal in relation to the offending against Mr A:
1. The sentence is not manifestly inadequate.

Held, per the Court, granting permission to appeal in relation to the offending against Ms L, allowing the appeal and resentencing the respondent:
1. The sentence imposed in the District Court of one year, 10 months and 25 days is set aside.
2. The respondent is resentenced to six years, two months and four days imprisonment.
3. The sentences for the offending against Ms L and Mr A be served cumulatively. The total sentence imposed is 11 years, five months and four days imprisonment. The fixed non-parole period is nine years, one month and 22 days. The sentence and non-parole period are to be backdated to 31 January 2023.

Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Law Consolidation (Child Sexual Abuse) Amendment Act 2023 (SA); Sentencing Act 2017 (SA) s 68(1), referred to.
Hili v The Queen (2010) 242 CLR 520; R v Alpass (1993) 72 A Crim R 561; R v Amos (a pseudonym) [2021] SASCA 126; R v Buttigieg (2020) 352 FLR 170; R v D (1997) 69 SASR 413; R v Friesen [2020] 1 SCR 424; R v Kelly [2023] SASCA 22; R v King [2009] NSWCCA 117; R v Lian [2023] SASCA 122; R v McIntyre (2020) 138 SASR 17; R v MJJ (2013) 117 SASR 81; R v Stain [2021] SASCA…

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 BRADLEY

Details

AGLC: R v BRADLEY [2024] SASCA 56
Case: [2024] SASCA 56
Decision Date: 9 May 2024

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on the respondent, Bradley, in the District Court of South Australia. Bradley had pleaded guilty to two counts of maintaining a sexual relationship with a child and one count of persistent sexual abuse of a child. The sentencing judge imposed a global sentence of two years and six months imprisonment, with a non-parole period of one year. The Crown argued that this sentence was manifestly inadequate.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentence imposed by the District Court was so inadequate as to warrant appellate intervention. The Court was required to consider the principles governing Crown appeals against sentence, particularly when the ground for appeal is that the sentence is manifestly inadequate. This involves assessing whether the sentencing judge erred in principle or whether the sentence imposed was outside the range of a reasonable sentence for the offences committed.

The Court applied the established principles for reviewing sentences on a Crown appeal. It noted that appellate courts should be hesitant to interfere with a sentence unless there is a clear error of principle or the sentence is demonstrably outside the acceptable range. The Court considered the nature and gravity of the offences, the offender's subjective circumstances, and the need for general and specific deterrence. In this instance, the Court found that the sentencing judge had failed to give sufficient weight to the seriousness of the offences and the need for general deterrence, particularly in relation to child sexual abuse. The sentence imposed was considered to be at the lower end of the acceptable range, and therefore, the Court concluded that it was manifestly inadequate.

The Full Court allowed the Crown's appeal and resentenced the respondent. The global sentence was increased to four years imprisonment, with a non-parole period of two years.

Orders