R v ELLIOTT - [2016] SASCFC 11

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v ELLIOTT
[2016] SASCFC 11
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Nicholson)
25 February 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - OFFENCES ARISING OUT OF SAME TRANSACTION OR COURSE OF CONDUCT
Appeal against sentence. The appellant was charged with two counts of aggravated indecent assault and one count of unlawful sexual intercourse with a person under 14 years of age. The appellant pleaded guilty to the charges. The timing of each plea was such that the appellant was entitled, pursuant to section 10C of the Criminal Law (Sentencing) Act 1988 (SA), to discounts of up to 30 per cent with respect to any sentence imposed for the two aggravated indecent assaults and of up to 40 percent with respect to any sentence imposed for the unlawful sexual intercourse. For the two aggravated indecent assaults, the Judge sentenced the appellant to a single term of imprisonment of three years and six months, reduced to two years and six months. For the offence of unlawful sexual intercourse, the Judge sentenced the appellant to five years imprisonment, reduced to three years. The sentences were to be served cumulatively.
The appellant appealed against the sentence imposed by the Judge on the grounds that the two sentences should have been made concurrent and that the sentences were manifestly excessive.
Held per Nicholson J (Peek and Blue JJ agreeing) allowing the appeal:
1. As the circumstances of the case involved an unbroken course of very closely related conduct involving the one victim, the Judge erred in ordering that the two sentences were to operate cumulatively. On this basis, the appeal is allowed, the sentence of the District Court is set aside and the appellant is to be resentenced.
2. In any event, the original sentence is to be regarded as manifestly excessive, given the need for substantial concurrency in the circumstances.
3. The appellant is resentenced; pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), to the one penalty for all three offences of imprisonment for three years with a non-parole period of 18 months. The sentence is backdated to commence on the day the appellant was taken into custody, 22 July 2015.
Criminal Law (Sentencing) Act 1988 (SA) s 10, s 10C, s 18A; Criminal Law Consolidation Act 1935 (SA) s 49, s 56, referred to.
R v Ahlburg [1994] SASC 4628; R v Horstmann [2010] SASC 103; R v Wooldridge [2015] SASCFC 125, (2015) 123 SASR 422; R v Copeland (No 2) [2010] SASCFC 61

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 ELLIOTT

Details

AGLC: R v Elliott [2016] SASCFC 11
Case: [2016] SASCFC 11
Decision Date: 25 February 2016

CaseChat Overview and Summary

The case of *R v Elliott* was heard in the Supreme Court of South Australia, Court of Criminal Appeal. The appeal concerned the conviction of the appellant, Elliott, for a number of offences, including indecent assault and unlawful sexual intercourse. The central dispute revolved around the sentencing of Elliott, specifically whether the sentences imposed for offences arising out of the same transaction should be served concurrently or cumulatively.

The primary legal issue before the Court of Criminal Appeal was whether the sentencing judge erred in ordering that the sentences for the various offences be served cumulatively. This required the Court to consider the principles governing the imposition of cumulative sentences, particularly in circumstances where the offences formed part of a single course of conduct or transaction. The Court also had to determine if the cumulative nature of the sentences was just and appropriate given the totality of the offending.

The Court of Criminal Appeal reasoned that while cumulative sentences can be imposed for offences arising out of the same transaction, this should only occur in exceptional circumstances. The general principle is that sentences for offences arising from the same transaction should be served concurrently to avoid punishing the offender twice for the same conduct. The Court found that the sentencing judge had not adequately justified the imposition of cumulative sentences in this instance, as the offences were closely connected and part of a continuous course of conduct.

Consequently, the Court of Criminal Appeal allowed the appeal in part, varying the sentence to ensure that the sentences for the offences arising out of the same transaction were served concurrently. The overall length of the sentence was reduced to reflect this adjustment, while still acknowledging the seriousness of the appellant's criminal conduct.

Orders