R v Deboo - [2019] SASCFC 74

Supreme Court of South Australia
(Court of Criminal Appeal)
R v DEBOO
[2019] SASCFC 74
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Auxiliary Justice David)
1 July 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
Appeal against sentence.
The applicant pleaded guilty to six counts of sexual nature committed against two young boys who were aged 13 and 11 years respectively at the time of the offending. The applicant was sentenced pursuant to s 26 of the Sentencing Act 2017 (SA) to a term of three years' imprisonment with respect to the offences committed against the first victim and a term of three years, seven months and six days' imprisonment with respect to the offences committed against the second victim. The two sentences were ordered to be served cumulatively. The trial Judge declined to suspend the total head sentence of six years, seven months and six days, and found that there were no special reasons to justify a home detention order.
In seeking permission to appeal his sentence, the applicant complains that both the sentence and the non-parole period are manifestly excessive, and that the trial Judge erred in finding that special reasons did not exist to justify a home detention order pursuant to s 71(4) of the Sentencing Act 2017 (SA).
Held, per Kelly J (Stanley J and David AJ agreeing), refusing permission and dismissing the appeal:
1. There was no error in the Judge's approach to sentencing and the sentence imposed was within the range available to the sentencing Judge (at [82]). The sentence appropriately reflects the overall criminality of the applicant's offending in the context in which it occurred (at [47]).
2. The applicant did not satisfy the criteria in s 71(4) so as to justify a home detention order (at [83]).
Sentencing Act 2017 (SA) ss 26, 53, 54, 71(2)(b)(ii), 71(4), referred to.
R v E, AD (2005) 93 SASR 20; Attorney-General v Grosser [2016] SASC 49, applied.
R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322, distinguished.
Thomas v Attorney-General (SA) [2019] SASCFC 21, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"appreciable risk"

R v DEBOO
[2019] SASCFC 74
Court of Criminal Appeal: Kelly and Stanley JJ, David AJ
KELLY J.
Introduction

The applicant, Vivian Frederick Deboo, appeals a sentence imposed in the District Court on 4 December 2018 for six counts of a sexual nature committed against two young boys who were then aged 13 and 11 years respectively.
The District Court Judge imposed sentences pursuant to s 26 of the Sentencing Act 2017 (SA) (“the Act”). As to the first three counts (two counts of indecent assault and one count of performing an…

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 Deboo

Details

AGLC: R v Deboo [2019] SASCFC 74
Case: [2019] SASCFC 74
Decision Date: 1 July 2019

CaseChat Overview and Summary

The case of R v Deboo involved an appeal against the sentencing of the applicant for sexual offences against two brothers, A and B. The applicant, a respected member of the church community, had manipulated his position of trust to commit these offences. The primary issue before the court was whether the applicant qualified for a home detention order under the relevant legislation. The court also considered whether the original sentence imposed by the lower court was appropriate. The applicant argued that the sentence was excessive and that he met the criteria for a home detention order. The Crown contended that the applicant did not meet the statutory criteria for such an order and that the original sentence was appropriate.

The court examined the statutory criteria for a home detention order and found that the applicant did not meet the requirements. The court noted that the applicant's offending was of a serious nature, involving a breach of trust and causing significant harm to the victims. The court held that the applicant's offending was not suitable for a home detention order due to the severity and impact of the crimes committed. The court also reviewed the original sentence imposed by the lower court and determined that it was within the appropriate range, considering the nature of the offences and the need for deterrence and denunciation.

In conclusion, the court rejected the applicant's appeal against the sentence. The court found no error in the Judge's approach to sentencing and affirmed that the sentence imposed was within the range available to the sentencing Judge. The applicant did not meet the criteria for a home detention order under the relevant legislation. Therefore, the appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

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Background

Background to the litigation

In light of the concession made by counsel for the applicant in this Court, I do not find it necessary to consider ground 2 any further.Factual background Before turning to discuss the grounds of the appeal, it is necessary to summarise the factual basis for the sentence imposed. The two victims of the applicant’s sexual offending are brothers. A, the elder boy, grew up in Victor Harbor, where his family were closely involved in the local church community. The applicant was also a member of that church community and ran a café in the main street of Victor Harbor. Around the time of A’s thirteenth birthday, the applicant offered A a job as a kitchen hand working for one night a week from 5 pm until 8 or 9 o’clock at night. Approximately six months later the applicant asked A to assist him with a week-long catering job at a nuns’ retreat in Aldgate. The applicant told A he would pay him $200 for the week and that it was necessary for them both to stay at the convent for the duration of the week. A’s parents let him accompany the applicant as he was a very respected member of the church community in which they lived. The applicant and A stayed together in a caravan on the property at Aldgate. After dinner, the applicant told A that it was time for a shower and stripped naked in front of A. While he showered, the applicant commented on A’s physique. There was only one bed in the caravan and the applicant told A they would have to “bunk together”. After they went to bed, the applicant spoke to A about masturbation. He took hold of A’s genitals, initially on the outside of his underwear, and then placed his hands inside and started to masturbate A. A was paralysed with fear and could not speak or move. The applicant masturbated himself and A for about five to 10 minutes. When A tried to get out of the bed and leave, the applicant tried to prevent him from doing so. A felt a great deal of pain in his anal rectal area, somehow caused by the applicant. Eventually he escaped from the bed and curled up under the dining table with his arms up to protect himself. He spent most of the nights that week under the table. Eventually the applicant’s wife picked A up and took him home. The anal pain continued for about a week. That is the conduct which gave rise to the two counts of indecent assault and the commission of the act of gross indecency in A’s presence. That conduct occurred between September and October 1991. The three counts in relation to A’s younger brother, B, occurred about a year later in 1992. When A finished working at the applicant’s café, the applicant arranged through the victims’ parents for B to work there. At that time, B was 11 or 12 years old. On the first day of work the applicant gave B dinner and dessert, and he encouraged the boy to drink as much soft drink as he liked. At the end of the evening, on the pretext of drying B’s shirt, he approached B, unbuttoned his shirt and took it off. The applicant then sat with B while the shirt dried, exposed his penis and began to talk to B about masturbation, interspersed with religious preaching. He then masturbated himself and fondled B’s penis. At that time, the applicant was holding B and had positioned him standing on a crate, with his hands under B’s armpits. B felt trapped and terrified. The applicant then ran his hands over B’s torso, legs, bottom and genitals and rubbed himself against B. B also experienced pain in his anus, which he believed was digitally caused by the applicant. He tried to move the applicant’s hands away from him. He eventually did knock his hand away, shouted ‘no’ and went home. Before he did so, the applicant told him that it was all right, that he would call his parents and that, although B had been naughty, the applicant would look after B.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

On the hearing of the appeal, a question arose, and submission were made, as to which version of the Act would apply in the event that this Court were to resentence. In light of the conclusion I have reached, I do not find it necessary to consider this issue any further. The point is now academic.Conclusion In my view, there was no error in the Judge’s approach to sentencing and the sentence imposed was within the range available to the sentencing Judge. The applicant did not satisfy the criteria in s 71(4) so as to justify a home detention order. For these reasons, I would refuse permission and I would dismiss the appeal. STANLEY J: For the reasons given by Kelly J I would refuse permission to appeal. DAVID AJ: I would refuse permission to appeal on all grounds and dismiss the appeal. I agree with the reasons of Kelly J.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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