R v Colbert - [1998] SASC 6801

R v COLBERT
[1998] SASC 6801
Court of Criminal Appeal
Coram: Millhouse, Perry and Nyland JJ
Nyland J
1     This is an application by the prosecution for leave to appeal against sentence. There is also a cross-appeal with respect to the amount of the discount allowed with respect to the plea of guilty.
2 The respondent pleaded guilty to one count of attempted rape, one count of gross indecency and two counts of rape. On 24 February 1998, a District Court judge imposed one sentence pursuant to s18A of the Criminal Law (Sentencing) Act 1988. He ordered that the respondent be imprisoned for nine years and fixed a non-parole period of five years. The judge indicated that but for the pleas of guilty the sentence would have been 10 years imprisonment. The prosecution seeks leave to appeal on the ground that the head sentence and non-parole period are manifestly inadequate in that (a) the sentence fails to reflect the total gravity and overall criminality of the offences; (b) the sentence fails to reflect the punitive, deterrent and preventative purposes of punishment; (c) the sentence fails to maintain adequate standards of punishment for offences of this nature.
3     The offences committed by the respondent arose out of two separate incidents and involved two separate victims.
4     The offences of attempted rape and gross indecency occurred on 26 October 1996 and relate to the victim L who was then aged 15 years. L was walking from the Noarlunga train station to visit a friend at approximately 4 pm. She heard footsteps behind her. She looked behind and saw the respondent. She continued to walk but heard footsteps running behind her. She again turned round, at which point the respondent grabbed her arms and held them tightly behind her back. A knife was held to her throat. She sustained a minor cut to her hand when she tried to push the knife away. The respondent moved her towards a grassed area near the path on which she had been walking. He pushed her on to the ground and moved on top of her so that he was sitting on her thigh. He stuck the blade of the knife into the ground and moved his hands on to her breasts saying he wanted to touch them. She struggled and tried to get him to stop. He responded by pinning her arms to her chest and telling her to undo her belt and pull down her pants. He then undid her belt and jeans and pulled her jeans about halfway down her thighs, together with her knickers. She screamed at him to get off. She was frightened that he would hurt her. He respondent exposed his penis and tried to insert it between her legs. He endeavoured to insert it in her vagina but her knickers were in the way. The respondent was unsuccessful in inserting his penis in her vagina and said “Either you suck me off or I keep going with this”. L…

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 Colbert

Details

AGLC: R v Colbert [1998] SASC 6801
Case: [1998] SASC 6801
Decision Date: 20 August 1998

CaseChat Overview and Summary

This case involves an application by the prosecution for leave to appeal against the sentence imposed on the respondent, Colbert, who pleaded guilty to multiple serious sexual offences. The District Court imposed a sentence of nine years imprisonment with a non-parole period of five years. The prosecution argued that the sentence was manifestly inadequate in that it failed to reflect the gravity of the offences and the purposes of punishment. There was also a cross-appeal by the respondent regarding the discount allowed for the plea of guilty. The Court of Criminal Appeal considered the arguments presented and the circumstances of the case. The Court held that while the sentence was at the lower end of the scale, it was not manifestly inadequate, and the sentencing judge had appropriately exercised his discretion. The Court noted the importance of maintaining adequate standards of punishment but also recognising the exercise of mercy where appropriate. The Court also found that the discount for the plea of guilty was reasonable, given the lateness of the plea and the strength of the prosecution's case. Both the application for leave to appeal and the cross-appeal were dismissed.

The final orders of the court were that the application for leave to appeal by the prosecution and the cross-appeal by the respondent should both be dismissed. The sentence imposed by the District Court was upheld.

Orders