R v C, G (No 2) - [2013] SASCFC 84

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v C, G (No 2)
[2013] SASCFC 84
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)
16 August 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - TO OTHERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - GENERALLY
The appellant was convicted in the District Court of four counts of unlawful sexual intercourse with his cousin who was 13 years old and five counts of unlawful sexual intercourse and one count of procuring an act of gross indecency with her twin sister. The defendant was also convicted of persistent sexual exploitation of three male cousins who were approximately each under 17 at the time.
The Judge imposed a single sentence under section 18A of the Criminal Law (Sentencing) Act 1988 (SA) of 13 years imprisonment with a non-parole period of six and a half years.
The Director of Public Prosecutions seeks permission to appeal against the sentence on the ground that it is manifestly inadequate.
Held per the Court refusing permission to appeal:
1. Permission to the Director to appeal against sentence should be granted only in rare exceptional cases in which it is necessary to establish and maintain adequate standards of punishment or correct idiosyncratic views, or where allowing the sentence to stand would shake public confidence in the administration of justice (at [6]).
2. The Director has failed to establish that permission to appeal is necessary for one of the above purposes (at [22]).
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Everett v The Queen (1994) 181 CLR 295; The Queen v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; Power v The Queen (1974) 131 CLR 623; R v Penno (2004) 236 LSJS 457, considered.

R v C, G (No 2)
[2013] SASCFC 84
Court of Criminal Appeal: Gray, Sulan and Blue JJ
THE COURT.

This is an application by the Director of Public Prosecutions for permission to appeal against sentence.
The defendant and respondent, following a trial, was convicted on four counts of unlawful sexual intercourse in relation to a female child, JM, and on four counts of unlawful sexual intercourse and one count of procuring an act of gross indecency in relation to JM’s twin sister, NM. He pleaded guilty to one further count of unlawful sexual intercourse in relation to NM. JM and NM were aged 13 years at the time of these offences.
The defendant was also convicted following the trial on three counts of persistent sexual exploitation of a child, in each case a male. Two of the male victims were under the age of 16 years and the third was under the age…

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 C, G (No 2)

Details

AGLC: R v C, G (No 2) [2013] SASCFC 84
Case: [2013] SASCFC 84
Decision Date: 16 August 2013

CaseChat Overview and Summary

This matter concerned an appeal by the Crown against the sentences imposed on the respondents, C and G, in the Supreme Court of South Australia. The respondents had pleaded guilty to a charge of aggravated assault occasioning actual bodily harm. The Crown contended that the sentences of 12 months imprisonment, suspended upon the respondents entering into recognisances, were manifestly inadequate.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentences imposed by the sentencing judge were so lenient as to be demonstrably wrong, thereby justifying the intervention of the appellate court. This required the court to consider the principles governing Crown appeals against sentence, particularly in relation to the sentencing judge's assessment of the relevant factors, including the hardship that the imposition of a custodial sentence might occasion to others.

The Full Court applied the established principles for Crown appeals against sentence, which require the appellate court to be satisfied that the sentence imposed was "manifestly inadequate" or "unreasonable" before interfering. The court acknowledged that sentencing is a discretionary exercise and that appellate courts should be slow to interfere with such discretion unless there is a clear error. In this instance, the court found that the sentencing judge had given appropriate weight to the mitigating factors, including the respondents' prior good character and the potential hardship to their families. The court concluded that the sentences, while perhaps at the lower end of the range, were not so inadequate as to be demonstrably wrong.

Consequently, the Full Court dismissed the Crown's appeals against the sentences imposed on C and G.

Orders