Supreme Court of South Australia
(Court of Appeal: Criminal)
R v BUTLER (A PSEUDONYM)
[2022] SASCA 112
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice David and the Honourable Auxiliary Justice Mazza)
27 October 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
The respondent pleaded guilty to two counts of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). On 25 March 2022, the respondent was sentenced to a good behaviour bond pursuant to s 97(1) of the Sentencing Act 2017 (SA) with the recording of a conviction and without any other penalty.
By Notice of Appeal filed 8 April 2022, the Director of Public Prosecutions (SA) sought permission to appeal against the respondent’s sentence on the sole ground that the sentence was manifestly inadequate.
The applicant alleged that the respondent’s offending was so serious that the only penalty that could have been justified was a term of imprisonment, in circumstances where a suspended term of imprisonment and a home detention order were not available sentencing options. The respondent contended that no express error had been made by the sentencing judge and emphasised the mitigating circumstances.
Held (Lovell JA) refusing permission to appeal:
1.While the sentence imposed was unreasonable and plainly wrong, in the circumstances, considerations of public policy do not require intervention by this Court.
Held (David JA and Mazza AJA) granting the Director permission to appeal, allowing the appeal and resentencing the respondent:
1.Notwithstanding the public interest in ensuring that the respondent is not twice vexed, the seriousness of the offending means that strong considerations of public policy require the Court’s intervention.
2.Despite the mitigating circumstances of the respondent’s offending and his favourable personal circumstances, no penalty other than imprisonment was justified.
3.The sentence imposed in the District Court was unreasonable and plainly unjust.
4.The order imposing the good behaviour bond is set aside. The respondent is re-sentenced to imprisonment for three years with a non-parole period of 18 months.
Criminal Law Consolidation Act 1935 (SA) ss 49, 50; Sentencing Act 2017 (SA) ss 3, 4, 9, 10, 11, 71, 96, 97; Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019 (SA); Statutes Amendment (Child Sex Offences) Act 2022 (SA) s 7; Criminal Procedure Act 1921 (SA) s 150(a), referred to.
Dinsdale v The Queen (2000) 202 CLR 321; Evans v The Queen [2019] SASCFC 145; Everett v The Queen (1994) 181 CLR 295; Glade v The Queen [2020] SASCFC 83; Green v The Queen (2011) 244 CLR 462; House v The King (1936) 55 CLR 499; McManus v Police [2019] SASC 206; R v Buttigieg
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- R v Butler [2022] SASCA 112
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- [2022] SASCA 112
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CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the sentencing judge erred in imposing a sentence that was manifestly inadequate, thereby constituting an improper exercise of discretion. This required the Court to consider the severity of the offences, the impact on the victim, and the mitigating and aggravating factors relevant to the respondent's circumstances and offending behaviour. The Court also had to assess the weight to be given to the expert psychological evidence presented regarding the respondent's mental state, his capacity for rehabilitation, and the potential impact of imprisonment on his progress.
The Court of Appeal considered the sentencing judge's reliance on psychological reports which indicated the respondent suffered from persistent depressive disorder, used his sexuality as a maladaptive coping strategy, and was socially immature at the time of the offences. These reports also suggested that the respondent was aware of the wrongfulness of his conduct, had shown remorse and victim empathy, and that his fear of imprisonment could serve as a deterrent. The expert also opined that an immediate term of imprisonment might jeopardise his rehabilitative gains and recommended specific rehabilitation programs. However, the Court noted that the sentencing judge had not adequately accounted for the seriousness of the offences and the significant harm caused to the complainant, particularly in light of the respondent's exploitation of the complainant's vulnerability. The Court found that the sentence imposed did not reflect the gravity of the offending conduct and the need for general deterrence.
The Court of Appeal allowed the Crown's appeal, finding the sentence to be manifestly inadequate. It resentenced the respondent to a term of imprisonment, reflecting the seriousness of the offences and the need to uphold community standards.
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Decision
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