R v Chesterman - [2017] SASCFC 31

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CHESTERMAN
[2017] SASCFC 31
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Parker and The Honourable Justice Doyle)
12 April 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Following pleas of guilty, the respondent was convicted of two counts of unlawful sexual intercourse with a person under 14 years, two counts of attempted unlawful sexual intercourse with a person under 14 years and aggravated indecent assault. The offending occurred against a background of similar conduct over a period of a few months. The victim was 13 years of age at the time of the offending and has an intellectual disability. The respondent, who was 59 years of age at the time of the offending, was aware of both the victim’s age and disability. The respondent was sentenced to eight years and four months imprisonment. This was reduced on account of the respondent’s pleas of guilty, resulting in a head sentence of five years imprisonment. A non-parole period of two years and six months imprisonment was fixed.
The Director of Public Prosecutions sought permission to appeal against the sentence imposed contending that both the head sentence and non-parole period were manifestly inadequate having regard to the seriousness of the offending (including the vulnerability of the victim), the impact of the offending upon the victim and his family, and the need for personal and general deterrence. The applicant further contends that the sentence is so manifestly inadequate as to warrant the intervention of this Court by granting permission to appeal, allowing the appeal and substituting an appropriate sentence of imprisonment.
Held per Doyle J (Kelly and Parker JJ agreeing), granting permission to appeal and allowing the appeal:
1. While the present case is distinguishable from R v D (1997) 69 SASR 413, the sentencing standard set in that case nevertheless provides significant guidance as to the appropriate penalty in the present case.
2. The features of this case, including the victim’s intellectual disability and the respondent’s knowledge of this, are such that the sentence imposed was significantly below the appropriate range.
Criminal Law Consolidation Act 1935 (SA) ss 49(1), 50, 56, 270A, referred to.
R v Van Gelder (2003) 142 A Crim R 1, discussed.
R v Van Gelder (2003) 142 A Crim R 1; Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; R v Quinn (2012) 114 SASR 354; R v MJJ; R v CJN (2013) 117 SASR 81, considered.

R v CHESTERMAN
[2017] SASCFC 31
Court of Criminal Appeal: Kelly, Parker and Doyle JJ

KELLY J: I agree.
PARKER J: I…

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 Chesterman

Details

AGLC: R v Chesterman [2017] SASCFC 31
Case: [2017] SASCFC 31
Decision Date: 12 April 2017

CaseChat Overview and Summary

The applicant, R, appealed against a sentence imposed by a sentencing judge for sexual offences. The appeal was heard by Kelly, Parker and Doyle JJ.

The primary legal issue before the Full Court was whether the sentence imposed by the sentencing judge was manifestly excessive or inadequate, thereby justifying interference on appeal.

The Court, in allowing the appeal, determined that the original sentence was inappropriate. While not interfering with an intervention order made by the sentencing judge, the Court set aside the imposed sentence and substituted it with a sentence of seven years and three months imprisonment, including a non-parole period of four years. This sentence was backdated to 1 June 2015.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There being no challenge to the intervention order made by the sentencing judge, I would not interfere with that order.Conclusion I would grant the applicant permission to appeal. I would allow the appeal, set aside the sentence imposed below, and impose a sentence of seven years and three months imprisonment, with a non-parole period of four years. I would backdate the sentence to 1 June 2015.

Ratio Decidendi

Legal Principle Established

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