R v D, RHC - [2011] SASCFC 31

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v D, RHC
[2011] SASCFC 31
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Kelly and The Honourable Justice Peek)
21 April 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant was convicted of one count of unlawful sexual intercourse with a person of the age of 14 years contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) and two counts of rape contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA) - the trial Judge sentenced the appellant to nine years' imprisonment with a four year non-parole period - the appellant appealed on the basis that the sentence was manifestly excessive in the circumstances of the case - whether the impact of imprisonment on the appellant's children warrants an allowance to the sentence and what, if any, allowance is appropriate in the circumstances of the case.
Held: appeal allowed. The head sentence imposed by the trial Judge was excessive in the circumstances of the case, in particular, the impact of the appellant's imprisonment on his children. The appellant was re-sentenced to seven years' imprisonment with a non-parole period of three years.
Criminal Law Consolidation Act 1935 (SA) s 49(3), s 48; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.

R v D, RHC
[2011] SASCFC 31
Court of Criminal Appeal: Doyle CJ, Kelly and Peek JJ

DOYLE CJ: Mr D has applied to the Court for permission to appeal against sentence. Permission to appeal was refused by a single Judge.
After a trial before a jury in the District Court, Mr D was found guilty of one count of unlawful sexual intercourse with Ms V, a person of the age of 14 years, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) and further found guilty of two counts of rape of Ms V contrary to s 48 of the CLCA. A District Court Judge sentenced Mr D to imprisonment for nine years and fixed a non-parole period of four years.
The case is an unusual one, as will appear. Mr Vadasz, counsel for Mr D, submits that the head sentence is manifestly excessive, but the main argument for Mr D is based on the impact of his imprisonment on two of his children. The case raises the issue of the allowance, if any, that should be made on that account.
Facts
In 1993 Ms V, then aged 14 years, ran away from home. She was unable or unwilling to live at home. She rented a room in a house occupied by Mr D. He was then 32 years of age. A sexual relationship began between them.
The offence of unlawful sexual intercourse occurred between February and July 1993. Bearing in mind that there was a continuing sexual relationship, the occasion of the…

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 D, RHC

Details

AGLC: R v D, RHC [2011] SASCFC 31
Case: [2011] SASCFC 31
Decision Date: 21 April 2011

CaseChat Overview and Summary

This case, heard by Doyle CJ, Kelly J, and Peek J in the South Australian Supreme Court, concerned an appeal against sentence by Mr D. Mr D had been convicted of unlawful sexual intercourse and rape. The primary ground of appeal was that the head sentence imposed by the District Court Judge was manifestly excessive, with a significant focus on the impact of Mr D's imprisonment on two of his children.

The legal issues before the court were whether the sentence imposed was manifestly excessive and, if so, what sentence should be substituted. A key consideration was the extent to which the court should allow for the impact of imprisonment on Mr D's children, particularly in light of their expressed distress and the psychiatrist's report detailing their anger towards their mother and concerns about their well-being if reunited with her. The court was required to balance these considerations against the gravity of the offences and other sentencing factors.

The court acknowledged the unusual and difficult circumstances of the case, particularly concerning the children. However, while recognising that the children's circumstances supported the consideration of suspending the sentence, the court ultimately concluded that suspension was not warranted. The Chief Justice, with whom the other judges agreed, allowed the appeal, set aside the original sentence, and substituted a single sentence of seven years imprisonment with a non-parole period of three years, commencing from the date Mr D was taken into custody.

Orders

Orders of the court

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Background

Background to the litigation

The case is an unusual one, as will appear. Mr Vadasz, counsel for Mr D, submits that the head sentence is manifestly excessive, but the main argument for Mr D is based on the impact of his imprisonment on two of his children. The case raises the issue of the allowance, if any, that should be made on that account.Facts In 1993 Ms V, then aged 14 years, ran away from home. She was unable or unwilling to live at home. She rented a room in a house occupied by Mr D. He was then 32 years of age. A sexual relationship began between them. The offence of unlawful sexual intercourse occurred between February and July 1993. Bearing in mind that there was a continuing sexual relationship, the occasion of the offence was identified as an occasion when Ms V, Mr D and Mr A engaged in sexual activity together. Ms V said that she was affected by alcohol on the occasion in question. The sexual relationship continued. Ms V moved house with Mr D on more than one occasion. The charge of rape was based on an incident in May 1995. Ms V was then 16 years of age. The incident occurred shortly after she had given birth to a child by Mr D. The occasion was identified as one when acts of intercourse involving Ms V, Mr D and Mr A were filmed, unknown to Ms V. The rape by Mr D involved vaginal and penile intercourse. Later again Ms V married Mr D. She had four children in all by him. The relationship broke down in 2005, resulting in the complaints made by Ms V against Mr D. There have been bitterly contested proceedings in the Family Court in relation to the custody of children. Material from the Family Court proceedings was before the sentencing Judge. The Judge was very critical of the conduct of Ms V and to a lesser extent that of Mr D. At one stage Ms V was convicted of attempting to procure the murder of Mr D, and as a result of that she was imprisoned in another State for a little more than a year. When Mr D was sentenced he was 50 years of age. He had had a troubled childhood. He had a record of minor offending, but not a substantial record, and the most recent offence was in 2008. He had never served a sentence of imprisonment. At the time of sentencing the children of Ms V and Mr D were aged 10 years, 11 years, almost 14 years (a boy) and 15 years (a girl). The younger two children had what the Judge called a “reasonable relationship” with Ms V, and were living with her. The two older children did not have a satisfactory relationship with Ms V. They had been living with Mr D until he was imprisoned, and wanted to continue to live with him. The Judge was told that the oldest child, Ms W, would nevertheless live with Ms V. Arrangements had been made for the boy T to live with another person. The Judge said:Adequate arrangements are in place to care for the children. I am unable to find that circumstances amounting to them being characterised as exceptional with the consequences that flow from such a finding. The Judge had a report from a psychiatrist relating to the circumstances of W and T. The psychiatrist had met with W and T. In his report he said:They both stated that they are very angry at their biological mother, [V] and they reported that they believe she is an unfit mother …On mental state examination both children presented as quite sad and depressed when they were giving reports about their biological mother. They both became quite tearful and at the same time angry at the prospect of their father being incarcerated. Other than that throughout the rest of the interview they both presented as quite reactive and appropriate and were engaging in coherent conversation. There was no evidence of any perceptual abnormalities.…I believe that the children are genuinely distressed at the prospect of their father being incarcerated. I am particularly concerned that their mental and emotional as well as their physical well-being can be affected should their father be incarcerated or at the prospect of them being re-united with their mother on a full time basis. It is apparent that despite all the chaos and distresses that have been happening in the family environment the children have coped surprisingly well. This is partly due to their display of resilience but also partly due to the effective job that their father has done as a parental figure. I believe that the children are functioning at a reasonable level at the present time. I would be particularly concerned if they were re-united with their mother. This may aggravate their level of functioning and create a major setback. Subsequently they would be at great risk of developing major psychiatric illness for which they will require ongoing therapy as well as interference with their level of functioning.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I turn to the question of whether the sentence should be suspended. In my opinion it should not be suspended. I cannot find good reason to do so. Suspension of the sentence would be out of the question, were it not for the circumstances of the two children. But while the circumstances of those children support suspension, the other factors to be taken into account lead me to conclude that suspension cannot be warranted.Conclusion As I said at the outset, this is an unusual and difficult case. I am most concerned about the situation of the children. However there is a limit to what the Court can do to protect them. I would allow the appeal, set aside the sentence imposed by the District Court Judge, and substitute a single sentence of imprisonment for seven years, exercising the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA). I would fix a non-parole period of three years. The sentence and non-parole period should commence from 26 March 2010, when Mr D was taken into custody. KELLY J: I agree with the orders proposed by the Chief Justice. PEEK J: I agree with the orders proposed by the Chief Justice and with his reasons.

Ratio Decidendi

Legal Principle Established

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