R v C, AP

[2006] SASC 386

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Leave to Appeal in Private)

R v C, AP

[2006] SASC 386

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice Layton)

20 December 2006

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE

The appellant was convicted of incest and sentenced to nine years and eight months imprisonment - a non-parole period of six years and nine months was fixed - the appellant is generally of good character - the appellant has made no indication of contrition or remorse - it is not arguable that the sentence falls outside the acceptable range - leave to appeal refused.

R v C, AP
[2006] SASC 386

Court of Criminal Appeal:  Doyle CJ, Sulan and Layton JJ

1. THE COURT:      This is an application for leave to appeal against sentence.

2. The application was made initially to a single Judge.  The applicant was represented by counsel.  The Judge refused leave to appeal.

3. The applicant has requested that the application be considered by the Full Court.  The applicant has not asked that the application be listed for oral argument.

4. Accordingly, the application has been considered by the Full Court in private.  For those purposes the Full Court comprised Doyle CJ, Sulan and Layton JJ.  The Court has considered the material before the sentencing Judge, the sentencing remarks and the transcript of the application made to the single Judge.

5. The applicant was convicted of three counts of incest (the maximum sentence for each of which is imprisonment for seven years), and one count of indecent assault (the maximum punishment for which is imprisonment for eight years).

6. The victim is a daughter of the applicant.  The offences were committed over a two year period.  At the time the applicant was separated from his former wife and two children, but apparently they spent a lot of time at his premises.  That is where the offences were committed.

7. The offences are to be dealt with against a background of other similar acts, over a period of time.  Of course, the applicant was not to be sentenced for those other similar acts.  But they mean that the offences in question cannot be treated as isolated incidents.  The third count of incest was accompanied by an indecent assault.  The incest counts involved anal intercourse on one occasion, and penile-vaginal intercourse on two occasions.

8. The applicant pleaded not guilty, and was found guilty by the verdict of the Judge before whom he was tried without a jury.

9. The applicant continues to deny his guilt of the offences.  There is no indication of remorse and no explanation for his conduct.  His background circumstances contain nothing out of the ordinary, other than an involvement in a serious motor vehicle accident some years back, and a pattern of fairly heavy consumption of alcohol.  The applicant is 41 years of age, and is generally of good character.

10. The material before the sentencing Judge indicated that the offences had had a significant adverse effect on the victim and on her mother.

11. The Judge imposed a single sentence of imprisonment for all of the offences.  He started from a head sentence of 10 years’ imprisonment, and made a reduction for time spent in custody as the result of a number of breaches of bail.

12. That led to a head sentence of 9 years 8 months, and the Judge fixed a non-parole period of 6 years 6 months.

13. The sentence imposed is a heavy sentence for a man with the applicant’s record.  But the offences are serious, and the fact that the offences continued over a substantial period of time adds to their gravity.  There are, regrettably, no significant mitigating circumstances to be taken into account, other than the applicant’s general good character apart from these offences.

14. The sentence imposed is in line with other sentences that have been imposed for similar offending.

15. There is no basis upon which the Court can say that the sentence imposed is outside an acceptable range for offending conduct of this kind.  For those reasons leave to appeal is refused, the complaint that the sentence is excessive being not reasonably arguable.