R v COAD - [2005] SASC 317

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COAD
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Debelle and The Honourable Justice Besanko)
19 August 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
Crown appeal against sentence – whether manifestly inadequate – whether sentencing judge’s discretion reviewable – held, sentence low but not manifestly inadequate – appeal dismissed.
Criminal Law (Sentencing) Act 1988 s 38, referred to.
Griffiths v The Queen (1977) 137 CLR 293; Everett v The Queen (1994) 181 CLR 295; Dinsdale v The Queen (2000) 202 CLR 321; R v Nemer (2003) 87 SASR 168, considered.

R v COAD
[2005] SASC 317
Court of Criminal Appeal: Duggan, Debelle and Besanko JJ

DUGGAN J. The Director of Public Prosecutions has applied for leave to appeal against the sentence imposed on the respondent in the District Court.
The respondent pleaded guilty to four counts of unlawful sexual intercourse and one count of indecent assault. The offences arose out of the same incident.
The respondent was 35 years of age at the time of the offences. He was living with his partner at Seacombe Gardens with their three children. He and his partner have now separated.
On the evening of the offences, the respondent was at home when he was visited by two youths from a nearby hostel. The youths had a drink with the respondent at his house and he asked them if they knew anyone who would do a striptease. They said they knew a girl who would be prepared to do the striptease. They left the house and the complainant arrived approximately 20 minutes later. She was approximately 15 and a half years of age at the time. The respondent claimed that she told him she was nearly 17 in a conversation prior to the commission of the offences.
According to the respondent, he offered the complainant $50.00 to do the striptease. The complainant then removed some of her clothing and the respondent removed her slacks. He inserted his finger into her vagina and anus. He also performed an act of cunnilingus upon her. At one stage he licked her breasts.
The respondent was sentenced on the agreed basis that the complainant was a consenting party to the sexual activity which took place. It was not in dispute that she had gone to the respondent’s house because of the promise of money.
The sentencing judge imposed a single sentence of imprisonment for 18 months and fixed a non-parole period of imprisonment for 12 months. The sentence was suspended on the respondent entering into a bond in the sum of $500.00 to be of good behaviour for two years.
The DPP has argued that the sentence was manifestly inadequate. It was submitted before this court that the learned sentencing judge underestimated the overall seriousness of the offences and the significance of the disparity in ages between the complainant and the respondent. It was argued that this resulted in the judge imposing an inadequate head sentence and non-parole period. It was also argued that the sentence should not have been suspended.
The principles relevant to an appeal against sentence by the prosecution are well established and require only a brief reference. It has been observed on many occasions that leave will be granted only in rare and exceptional cases: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 321 at [62]. In Griffiths v The Queen (1977) 137 CLR 293 at 310 Barwick CJ made the following comment:
an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.
An appellate court will also interfere “if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice”: R v Nemer (2003) 87 SASR 168 at [22]. However, the court will not interfere simply because it considers that the sentence is too low.
Mr Brebner QC, for the Director of Public Prosecutions, correctly pointed out that the disparity in ages between the respondent and the complainant was an aggravating feature of the case. However, this aspect was not overlooked by the sentencing judge who commented on the fact that this was a case of a man of mature age taking advantage of a younger person. The sentencing remarks, of themselves do not reveal an error of sentencing principle in any respect.
However, as Kirby J said in Dinsdale v The Queen at [59]:
As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly House v The King (1936) 55 CLR 499 at 505. In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried R v Valentini and Garvie (1980) 2 A Crim R 170 at 174; R v Davey (1980) 2 A Crim R 254 at 259-261.
I have approached the task of reviewing the sentence and the non-parole period with those remarks in mind. The offences were serious, but they arose out of one episode of offending. The respondent has a record of previous convictions, but none of them involved the commission of sexual offences. Apart from an offence of making a false statement in a claim for social security payments, the offences are of a relatively minor nature. The respondent has a good employment record, although a work related injury has now resulted in unemployment.
In the light of the respondent’s pleas of guilty and the other factors to which I have referred, I would not regard the head sentence and non-parole period as being outside the proper exercise of the sentencing discretion.
The next issue raised by the application for leave to appeal is the suspension of the sentence.
The decision whether or not to suspend a sentence is to be made only after it has been decided that a sentence of imprisonment of a particular length is appropriate. Section 38 of the Criminal Law (Sentencing) Act 1988 invests the court with a discretion to suspend if it thinks that good reasons exists for doing so. Of course, the breadth of the discretion does not leave its exercise immune from appellate review.
When considering the exercise of the discretion, the circumstances relating to the offence and those relating to the offender are to be taken into account: Dinsdale v The Queen at [85]. The sentencing court must “reconsider and give renewed attention to all the circumstances of the case”: supra at [89]. The seriousness of the particular offence may render the exercise of the discretion to suspend inappropriate. Deterrence remains a factor. Prospects of rehabilitation are not to be considered in isolation, although they may be of particular relevance to the decision to suspend.
In his sentencing remarks the learned judge said he considered it was unlikely that the respondent would offend again. This appears to have been the main reason for the decision to suspend. I assume this assessment was made on the basis that the appellant had not committed any sexual offence before and that the offending took place on the one occasion.
After giving the matter careful consideration, I have reached the conclusion that the decision to suspend was an option which was properly open to the court and that this is not one of that class of cases which require the intervention of the court on a Crown appeal.
I would refuse leave to appeal against sentence.
DEBELLE J. I agree with the reasons of Duggan J.
This is very much a borderline case in that the disparity in ages is an aggravating feature of the respondent’s conduct. However, that must be weighed against the fact that the facts as agreed by the prosecution were that the complainant was a consenting party. In this case, that is a significant factor.
The head sentence and the non-parole period are merciful but not outside the bounds of the sentencing discretion. Similarly, the suspension of the sentence is merciful but it is not possible to identify an error in the sentencing decision.
I agree that the appeal should be dismissed.
BESANKO J. In my opinion, the application for leave to appeal against sentence should be refused. I agree with the reasons for judgment of Duggan J.