(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Besanko)
1 September 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal and leave to appeal against sentence - the appellant was sentenced in the District Court to imprisonment for ten years and five months with a non-parole period of six years and six months after pleading guilty to offences of: unlawful sexual intercourse with a person under the age 12; two counts of indecent assault; 13 counts of inducing a child to expose his or her body contrary to s 58A(1)(b) of the Criminal Law Consolidation Act (now repealed) - general principles of sentencing discussed - the use of sentencing standards discussed - whether the sentence was manifestly excessive - the totality principle discussed - leave to appeal application renewed before the Full Court on grounds of rehabilitation, guilty pleas and the totality principle - leave to appeal refused - appeal dismissed.
Court of Criminal Appeal: Doyle CJ, Debelle and Besanko JJ
DOYLE CJ: This is an appeal by leave against a sentence imposed by the District Court. The complaint is that the penalty is manifestly excessive. Leave to appeal was refused on three grounds. The appellant requested that the application for leave to appeal on those grounds be considered and determined by the Full Court. The Full Court considered the application for leave to appeal on the hearing of the appeal, treating the argument on the application for leave as the argument on the appeal.
Facts
The appellant pleaded guilty to a number of offences. The victims were twins, his stepdaughter and his stepson. When the first few offences were committed they were nine years of age. In the closing stages of the offending conduct they were ten years of age.
The first offence was one of unlawful sexual intercourse with a person under twelve years of age. The victim was the stepdaughter. The appellant inserted his finger into her vagina. The offence was committed in July 2002. The maximum penalty for this offence is imprisonment for life.
The next two offences are offences of indecent assault. The victim was again the appellant’s stepdaughter. These offences…
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.
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Details
AGLC
R v E, AD [2005] SASC 332
Case
[2005] SASC 332
Decision Date
CaseChat Overview and Summary
The case of R v E, AD involved an appeal against a sentence handed down in the District Court, where the appellant was convicted of multiple serious offences against a child. The offences included unlawful sexual intercourse with a person under the age of 12, two counts of indecent assault, and 13 counts of inducing a child to expose his or her body. The appellant had pleaded guilty and was sentenced to imprisonment for ten years and five months, with a non-parole period of six years and six months. The appellant sought leave to appeal against the sentence, arguing that it was manifestly excessive and that the principles of sentencing were not properly applied.
The legal issues before the court were whether the sentence imposed was manifestly excessive, whether the principles of sentencing, including the use of sentencing standards and the totality principle, were appropriately applied, and whether the sentence breached the totality principle. The court considered the gravity of the offences, the appellant's guilty pleas, and the need to balance the punishment with the principles of rehabilitation. The court also needed to determine whether the sentence was disproportionate when considering the cumulative effect of the offences.
The court held that the sentence was not manifestly excessive and that the principles of sentencing were appropriately applied. The judges found that the totality principle was not breached, and the sentence was proportionate to the gravity of the offences. The court rejected the grounds for leave to appeal, which included arguments based on the appellant's rehabilitation prospects, the guilty pleas, and the totality principle. The appeal against sentence was dismissed, and leave to appeal was refused on the specified grounds.
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
For the reasons given I would refuse leave to appeal on grounds 2, 3 and 4.Conclusion I would refuse leave to appeal on grounds 2, 3 and 4. I would dismiss the appeal against sentence. DEBELLE J: I have had the advantage of reading the reasons of the Chief Justice. I prefer not to express a view on the question of totality which was not argued at length. I nevertheless believe that the principles of totality were not breached by the sentence. I agree with the balance of the reasons of the Chief Justice. I agree that the appeal should be dismissed and leave to appeal refused on grounds 2, 3 and 4. BESANKO J: I agree that leave to appeal on grounds 2, 3 and 4 should be refused and that the appeal against sentence should be dismissed. I agree with the reasons for judgment of the Chief Justice.