R v C, Om - [2005] SASC 60

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v C, OM
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Besanko and The Honourable Justice White)
23 February 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCING
Appeal against sentence - unlawful sexual intercourse with daughter - sexual misconduct over period of eight years - attempt to procure abortion - sentence of 23 years with a non-parole period of 15 years 6 months - whether term of imprisonment manifestly excessive - sentence within bounds of sentencing discretion - appeal dismissed.
Criminal Law (Sentencing) Act 1988 s 18A, referred to.
R v Liddy (No 2) (2002) 84 SASR 231; R v Hooper (1995) 64 SASR 480, applied.
R v D (1997) 69 SASR 413, distinguished.
R v Wilson (1978) 19 SASR 311; R v Garrett (Court of Criminal Appeal, 29 May 1996, Judgment No 5652); R v AJW (2001) 80 SASR 246; R v Chandra and Hart [2003] SASC 319, considered.

R v C, OM
[2005] SASC 60
Court of Criminal Appeal: Debelle, Besanko and White JJ

DEBELLE J.This is an appeal against sentence. The appellant was charged with five counts of unlawful sexual intercourse with a person under the age of 12 years, six counts of unlawful sexual intercourse, and one count of attempting to procure an abortion. The offending occurred between 1992 and 2000. The counts named in the Information are representative of the appellant’s sexual misconduct to his daughter over a period of some eight years. The victim in each case was the appellant’s first-born daughter, born on 21 September 1984. She was the second of four children.
The appellant pleaded guilty to three counts of unlawful sexual intercourse, but not guilty to all other counts. After a trial by judge alone, he was found guilty on all of the counts save one count of unlawful sexual intercourse with a person under the age of 12 years
Acting pursuant to s 18A of the Criminal Law (Sentencing) Act1988, the judge imposed one sentence in respect of all of the offending. He ordered a sentence of 23 years imprisonment, fixing a non-parole period of 15 years 6 months, to run from 25 September 2002, the date when the appellant was taken into custody. The appellant appeals on the ground that the sentence is manifestly excessive.
The appellant’s offending placed it among the worst kind of criminal behaviour of this kind. It involved digital and penile penetration of the vagina, cunnilingus, fellatio and an offence of anal intercourse.
The offending began and continued within the confines of the appellant’s family, in an atmosphere of fear, brought about by the appellant’s physical violence towards his wife and his first three children. The violence was the more severe by reason of the fact that the appellant was frequently drunk. His wife…

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 C, Om [2005] SASC 60
Case: [2005] SASC 60
Decision Date: 23 February 2005

CaseChat Overview and Summary

The appellant was convicted of various offences, including unlawful sexual intercourse with his daughter, commencing when she was 13 years old and continuing for eight years. The appellant was also found guilty of procuring a medical practitioner to assist in procuring an abortion for the victim. The appellant was sentenced to 23 years imprisonment with a non-parole period of 15 years and six months. The appellant appealed against the sentence, arguing that it was manifestly excessive. The primary judge considered the appeal and dismissed it, finding that the sentence was within the bounds of the court's sentencing discretion.

The court was required to decide whether the sentence imposed by the primary judge was manifestly excessive. In doing so, the court considered the nature and circumstances of the offences, the appellant's culpability, and the need for the sentence to reflect the community's condemnation of the offending behaviour. The court noted that the offences were of a serious and heinous nature, involving the sexual abuse of a child over an extended period. The court also considered the appellant's lack of remorse and the need for general and specific deterrence.

The court found that the sentence imposed by the primary judge was not manifestly excessive. The court considered the totality of the offending behaviour and the need for the sentence to reflect the gravity of the offences. The court noted that the sentence was within the range of sentences imposed for similar offences and that the primary judge had considered all relevant factors in determining the sentence. The court also found that the sentence was sufficient to achieve the purposes of punishment, including general and specific deterrence, denunciation, and retribution. The appeal was dismissed.

Orders