R v Duell - [2021] SASC 146

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

R v DUELL
[2021] SASC 146
Reasons for Decision of the Honourable Justice Bampton
22 December 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - OTHER OFFENCES AND MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
Instead of sentencing the defendant for failing to comply with reporting obligations contrary to s 44(1a) of the Child Sex Offenders Registration Act 2006 (SA), depositing indecent material contrary to s 33(2)(d) of the Summary Offences Act 1953 (SA), breaches of a Magistrates Court suspended sentence bond and a District Court good behaviour bond, the District Court remanded the defendant pursuant to s 57(2) of the Sentencing Act 2017 (SA) (“the Act”) to be dealt with under s 57 of the Act – the Director of Public Prosecutions applies for an order that the defendant be detained in custody until further order pursuant to s 57(7) of the Act (“the application”).
Held:
1. The application is dismissed.
2. The defendant is sentenced pursuant to s 57(12) of the Act.
Sentencing Act 2017 (SA) s 57; Child Sex Offenders Registration Act 2006 (SA) s 44; Summary Offences Act 1953 (SA) s 33; Criminal Law (High Risk Offenders) Act 2015 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) s 63A, referred to.
R v Schuster (2016) 125 SASR 388; Attorney-General (SA) v Driver [2021] SASC 66; R v Hoare [2017] SASC 7; Hore v The Queen [2021] SASCA 29; Nigro v Secretary to the Department of Justice (2013) 41 VR 359, considered.

R v DUELL
[2021] SASC 146

BAMPTON J: The Director of Public Prosecutions (“the Director”) has applied for an order that Paul Anthony Duell be detained in custody until further order pursuant to s 57(7) of the Sentencing Act 2017 (SA) (“the Act”).
The July 2019 offending
On 28 November 2019, Mr Duell pleaded guilty in the Magistrates Court to one count of failing to comply with reporting obligations contrary to s 44(1a) of the Child Sex Offenders Registration Act 2006 (SA) committed on 16 July 2019, and one count of depositing indecent material contrary to s 33(2)(d) of the Summary Offences Act1953 (SA) (“the Summary Offences Act”) committed on 18 July 2019 (“the July 2019 offending”).[1]
[1] AMC-19-6729; DCCRM-20-414; SCCRM-20-190.
The breach of the suspended sentence bond entered into 26 October 2018
On 21 January 2020, Mr Duell appeared before the Magistrates Court and admitted the July 2019 offending breached a suspended sentence bond he had entered into in the Magistrates Court on 26 October 2018 (“the suspended sentence bond”).[2] Mr Duell also admitted breaching the suspended sentence bond by using illicit drugs.[3]
[2] AMC-19-9493; DCCRM-20-416; SCCRM-20-193.
[3] AMC-19-7301; DCCRM-20-415; SCCRM-20-192.
The offending underlying the suspended sentence bond comprises three counts of depositing indecent material contrary to s 33(2)(d) of the Summary Offences Act

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 Duell

Details

AGLC: R v Duell [2021] SASC 146
Case: [2021] SASC 146
Decision Date: 22 December 2021

CaseChat Overview and Summary

In the case of R v Duell, the defendant faced sentencing for a criminal matter involving offences against the person, specifically sexual offences. The matter was heard and determined in an Australian court. The primary legal issue before the court was to decide the appropriate sentence for the defendant, taking into account the nature and circumstances of the offence, the defendant's criminal history, and the recommendations of various experts and authorities.

The court was required to consider the submissions of counsel, the opinions of two experts, Dr Raeside and Dr Furst, and the information provided by the Department for Correctional Services. The court also needed to determine whether an indefinite detention order should be granted under the relevant legislation. The court's reasoning involved a comprehensive analysis of the defendant's criminal history, the severity of the offence, and the risk posed by the defendant to the community.

The court concluded that the defendant should be sentenced pursuant to section 57(12) of the Act. After considering all the evidence and submissions, the court dismissed the application for an indefinite detention order. The resulting sentence was four years, one month, and 29 days, with a non-parole period of two years, nine months, and 10 days, to be served cumulatively upon the revoked suspended sentence of two months. The court's decision was based on the comprehensive assessment of the defendant's circumstances and the applicable legal framework.

ORDERS:
1. The application is dismissed.
2. The defendant is sentenced pursuant to s 57(12) of the Act.

Orders

Orders of the court

Held:

1. The application is dismissed.

2. The defendant is sentenced pursuant to s 57(12) of the Act.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The resulting sentence of four years, one month, and 29 days with a non‑parole period of two years, nine months, and 10 days is to be served cumulatively upon the revoked suspended sentence of two months.Conclusion Having considered the opinions of Dr Raeside, Dr Furst, information provided by the Department for Correctional Services and the submissions of counsel, I dismiss the application for an indefinite detention order.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.