R v Dyett

Case [2023] SASCA 41

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

R v DYETT

[2023] SASCA 41

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)

18 April 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

Crown appeal against sentence.

The offending concerned unlawful sexual intercourse in the context of a relationship over an 18-month period, which commenced in late 1999 when the complainant was 15 years and the respondent was 21 years.  After 18 months the complainant turned 17 and the relationship continued.  The complainant and the respondent were later engaged and had a child, but separated during 2003. 

During the twenty years between offending and sentence, the respondent commenced a new relationship and raised and supported his family, devoting considerable time to the care of a daughter diagnosed with autism.

After he pleaded guilty the respondent was sentenced to a term of imprisonment of two years.  After an allowance of around one third for the respondent’s plea, the sentence became one year and four months.  The sentencing judge fixed a non-parole period of eight months. 

The Director submitted that both the head sentence and the non-parole period required correction in accordance with well-established principles, so as to maintain proper sentencing standards for offending of this kind.

The Court held (dismissing the application for permission to appeal):

1.The sentence was low.  Even if it could be said that the sentence was manifestly inadequate, this is not the kind of rare and exceptional case in which it would be appropriate to grant the prosecution permission to appeal against sentence.

2.The unusual and difficult features of this case militate against the view that the sentence is one which has the capacity to undermine public confidence in the administration of justice.

Criminal Law Consolidation Act 1935 (SA) s 50; Criminal Procedure Act 1921 (SA) ss 150 and 157, referred to.
Adams (a pseudonym) v The Queen [2022] SASCA 47; Clarkson v The Queen (2011) 32 VR 361; Dinsdale v The Queen (2000) 202 CLR 321; Everett v The Queen (1994) 181 CLR 295; Glade v The Queen [2020] SASCFC 83; Hili v The Queen (2010) 242 CLR 520; Lee v The State of Western Australia [2022] WASCA 137; Malvaso v The Queen (1989) 168 CLR 227; R v Bahrami (2020) 137 SASR 327; R v Butler [2022] SASCA 112; R v Chesterman [2017] SASCFC 31; R v Creed (1985) 37 SASR 566; R v D (1997) 69 SASR 413; R v Dyett [2022] SADC 6; R v Lutze (2014) 121 SASR 144; R v McGaffin (2010) 206 A Crim R 188; R v McIntyre (2020) 138 SASR 17; R v Osenkowski

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R v Dyett [2023] SASCA 41
Case
[2023] SASCA 41
Decision Date

CaseChat Overview and Summary

The case of *R v Dyett* involved an appeal by the Crown against the sentence imposed on the respondent. The appeal concerned the sentencing discretion exercised by the trial judge in relation to offences of an unlawful sexual nature.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentence imposed by the sentencing judge was so manifestly inadequate as to warrant intervention on a Crown appeal. This required the Court to consider the principles governing Crown appeals against sentence, particularly the threshold for intervention and the balance between appellate correction and the sentencing judge's discretion.

The Court, comprising Livesey P, Bleby and David JJ, affirmed the principles established in cases such as *R v Osenkowski*. They emphasised that prosecution appeals should not unduly restrict a sentencing judge's discretion, which includes the capacity for mercy and the potential for leniency to foster reform. The Court noted that the sentencing judge had carefully considered the unusual and difficult features of the case, and their exercise of discretion did not reveal any error. The Court found that the non-parole period, set at one half of the head sentence, fell within a recognised range and did not, of itself, suggest error or undermine public confidence in the administration of justice.

Ultimately, the Court concluded that even if the sentence could be considered manifestly inadequate, it was not a rare or exceptional case requiring intervention to address a question of principle or maintain adequate standards of punishment. Accordingly, the application for permission to appeal sentence was dismissed, as was the cross-appeal which was not pressed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As for the non-parole period, it cannot be said that a period of one half of the head sentence of itself suggests error given the various matters adverted to by the sentencing judge. The allowance of one half of the head sentence falls within the recognised range of between one half and three quarters of the head sentence.[30] It cannot be said that this feature, of itself, is so low as to undermine public confidence in the administration of justice.[30] R v McIntyre (2020) 138 SASR 17 [84]-[85] (Doyle J, with whom Stanley and Hughes JJ agreed).Conclusion The unusual and difficult features of this case were addressed by the sentencing judge’s exercise of a broad sentencing discretion in a manner that does not reveal any error, and certainly no error along the lines of the criticisms made by the Crown. As King CJ explained in R v Osenkowski:[31]It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.[31] R v Osenkowski (1982) 30 SASR 212, 212-213 (King CJ, with whom White J agreed). Even if it could be said that the sentence was manifestly inadequate, this is not the kind of rare and exceptional case in which it would be appropriate to grant the prosecution permission to appeal against sentence. In particular, it is not necessary for this Court to intervene so as to address any question of principle or to maintain adequate standards of punishment for the kind of offending raised by this case.[32] [32] R v Nemer (2003) 87 SASR 168, [22]-[24] (Doyle CJ); R v Osenkowski (1982) 30 SASR 212, 212-213 (King CJ, with whom White J agreed). See generally Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; Dinsdale v The Queen (2000) 202 CLR 321. The unusual and difficult features of this case militate against the view that the sentence is one which has the capacity to undermine public confidence in the administration of justice. The application for permission to appeal sentence should be dismissed. As the cross-appeal is not pressed, it is appropriate to dismiss that as well.

Ratio Decidendi

Legal Principle Established

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