R v Douglass - [2011] SASCFC 6

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DOUGLASS
[2011] SASCFC 6
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Anderson)
4 March 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - BREACH OF TRUST
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - PRIOR CRIMINALITY
Appeal against sentence of imprisonment imposed by District Court Judge - appellant found guilty following trial by Judge alone of one count of aggravated indecent assault - offence committed against appellant's young granddaughter while appellant was in position of trust - appellant was 55 years of age at time of offending - appellant had prior convictions for offences of a sexual nature - head sentence of three years’ imprisonment imposed - non-parole period of 18 months imposed - sentencing Judge declined to suspend the sentence - whether sentencing Judge erred in failing to suspend the term of imprisonment imposed - whether sentence manifestly excessive.
Held: appeal dismissed - no error of sentencing principle identified - sentencing Judge entitled to decline to suspend sentence given seriousness of offending and appellant's prior criminal offending - sentence not manifestly excessive.
Statutes Amended (Sentencing of Sex Offenders) Act 2005 (SA) s 4(4); Criminal Law (Sentencing) Act 1988 (SA) s 10(4), referred to.
Director of Public Prosecutions (SA) v O'Connor (1995) 65 SASR 250, discussed.
R v Horstmann [2010] SASC 103, considered.

R v DOUGLASS
[2011] SASCFC 6
Court of Criminal Appeal Gray, Sulan and Anderson JJ
THE COURT

This is an appeal against sentence.
The defendant and appellant, Raymond Howard Lyle Douglass, was found guilty following a trial before a District Court Judge of the offence of aggravated indecent assault. The offence involved the indecent assault of the defendant’s three year old granddaughter on 23 October 2008. The maximum penalty for the offence is 10 years’ imprisonment.
Background
On 10 November 2010, the defendant was sentenced to a term of imprisonment of three years. A non-parole period of 18 months was fixed. The Judge declined to exercise his discretion to suspend the sentence.
The defendant’s granddaughter, C, was staying at her grandparents’ home, a farm in the Adelaide Hills. C’s parents were estranged and at the time C was living with her mother, the daughter of the defendant. The defendant took C with him when he went to visit his mother. On the way the defendant stopped on a property where the offending conduct occurred. The defendant had C hold his penis while he urinated.
About a week later C spoke about the indecent assault to her father. She recounted the incident as though it was an entirely normal event. C’s father reported the conversation to C’s mother who then spoke to the defendant’s wife and then the defendant about 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 Douglass

Details

AGLC: R v Douglass [2011] SASCFC 6
Case: [2011] SASCFC 6
Decision Date: 4 March 2011

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, Raymond Howard Lyle Douglass, by the District Court following his conviction for aggravated indecent assault. The offence was committed against his three-year-old granddaughter while he was in a position of trust. The sentencing Judge imposed a head sentence of three years' imprisonment with a non-parole period of 18 months, declining to suspend the sentence. The appellant argued that the sentencing Judge erred in failing to suspend the sentence and that the sentence was manifestly excessive.

The Court of Appeal was required to determine whether the sentencing Judge had erred in principle by declining to suspend the term of imprisonment, and whether the imposed sentence was demonstrably excessive in the circumstances. This involved considering the nature and circumstances of the offence, including the breach of trust involved, as well as the personal circumstances of the offender, particularly his prior criminal history for offences of a sexual nature.

The Court found no error in the sentencing Judge's decision. It reasoned that the seriousness of the aggravated indecent assault, particularly given the victim's age and the familial relationship, coupled with the appellant's prior convictions for sexual offences, provided ample justification for the Judge to decline to suspend the sentence. The Court concluded that the sentence was not manifestly excessive, taking into account these significant factors.

Consequently, the appeal was dismissed, and the sentence imposed by the District Court was upheld.

Orders

Orders of the court

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Background

Background to the litigation

The defendant and appellant, Raymond Howard Lyle Douglass, was found guilty following a trial before a District Court Judge of the offence of aggravated indecent assault. The offence involved the indecent assault of the defendant’s three year old granddaughter on 23 October 2008. The maximum penalty for the offence is 10 years’ imprisonment. Background On 10 November 2010, the defendant was sentenced to a term of imprisonment of three years. A non-parole period of 18 months was fixed. The Judge declined to exercise his discretion to suspend the sentence. The defendant’s granddaughter, C, was staying at her grandparents’ home, a farm in the Adelaide Hills. C’s parents were estranged and at the time C was living with her mother, the daughter of the defendant. The defendant took C with him when he went to visit his mother. On the way the defendant stopped on a property where the offending conduct occurred. The defendant had C hold his penis while he urinated. About a week later C spoke about the indecent assault to her father. She recounted the incident as though it was an entirely normal event. C’s father reported the conversation to C’s mother who then spoke to the defendant’s wife and then the defendant about the allegation. The defendant denied the allegation and has continued to do so. Victim impact statements from C’s mother and father were before the Court. Those statements graphically portray the consequences of the defendant’s criminal conduct. C’s mother’s statement outlined C’s changed behaviour. Both have been to counselling. One consequence of the defendant’s conduct has been to cause a major rift in the family. C’s mother and her children have been ostracised by the rest of the family. As she said in her victim impact statement: You have taken my family away from me and my children. We no longer have any family as no-one except [R] contacts us. Christmas and birthdays are horrible. My kids have missed out on so much with their family as we are no longer invited to birthday’s [sic] or special occasions and no-one wants to socialise with us. The kids miss [C] and [A] and they can’t see them even though they ask about them all the time. I believe that -having family around children helps them grow and develop their own relationships, you have taken this from them and we are left on our own with no support. The victim impact statement from C’s father attests to the impact of the defendant’s offending both to C and himself. He too speaks of the rift in the family. He describes how his own life has taken a back seat as he struggles to cope with the implications of the defendant’s offending. The defendant is aged in his late 50s. He has always lived in the Adelaide Hills on an orchard property. He lived next door to his mother. His mother is in her 80s and in poor health. The sentencing Judge described the defendant as a hard worker who supported both his mother and his partner. His partner is in poor health requiring hospitalisation from time to time. The defendant also suffers from ill-health. The sentencing Judge noted in particular the impact that an immediate custodial sentence would have on the defendant and his family. The defendant had three children; one of whom is the mother of C. One of the other children of the defendant lives close by in the Adelaide Hills. The defendant’s partner is the mother of his three children. They had earlier divorced but more recently have resumed a relationship as partners.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given the seriousness of the offending and the defendant’s criminal antecedents we consider that the sentencing Judge was entitled to decline to suspend the sentence of imprisonment. Conclusion This appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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