R v "G" - [2001] WASCA 160

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: R -v- "G" [2001] WASCA 160

CORAM: WALLWORK J
MURRAY J
ANDERSON J

HEARD: 18 APRIL 2001

DELIVERED : 23 MAY 2001

FILE NO/S: CCA 283 of 2000

BETWEEN: THE QUEEN
Appellant
AND
"G"
Respondent

Catchwords:

Criminal law - Sentencing - Crown appeal - Discretion of sentencing Judge - Sexual offences by mother of victim - Father committed more offences - Received heavier penalty - Disclosure of offences resulted from mother's attempt to protect children - Mother's capacity grossly diminished

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr D Dempster
Respondent: Mr R D Young

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: Gunning

Case(s) referred to in judgment(s):

Lowndes v The Queen (1999) 195 CLR 665
R v GP (1997) 18 WAR 196
R v Grein [1989] WAR 178
R v Osenkowski (1982) 30 SASR 212

Case(s) also cited:

Podirsky (1989) 43 A Crim R 404
R v CW [2000] 111 A Crim R 287
Woods v R (1995) 14 WAR 341

WALLWORK J: On 27 October 2000 in the District Court the respondent was convicted after a trial of three offences of a sexual nature against her daughter. On 8 December she was sentenced to an effective term of 6 years' imprisonment being comprised of 1 year's imprisonment for an offence of indecently dealing with the child when she was under the age of 16 years, a term of 3 years' imprisonment for sexually penetrating the child while she was under the age of 16 years and a term of 6 years' imprisonment for sexually penetrating the child by inserting an object into her vagina. The first two sentences were ordered to be served at the same time as the 6 year sentence with all the sentences to commence from 27 October 2000 when the applicant had been taken into custody after her conviction. The applicant was made eligible for parole.
The Crown now appeals against the sentences on the basis that they were manifestly inadequate and failed to reflect sufficiently the serious nature of the offences. The Crown also contends that the sentence of 3 years' imprisonment for the second offence was inconsistent with the sentence of 7 years' imprisonment which was imposed upon the respondent's husband for the same offence at the same time. The husband was a joint offender with respect to that offence.
The essential basis of the Crown appeal is that at the time of the offences the child was only 8 or 9 years of age and that the offences involved an exploitation and corruption of the child by both the respondent who was the child's mother and her co‑offender, who was the child's father. The child's father, who was convicted of offences involving two indecent dealings against the child and four sexual penetrations, was sentenced to a total effective term of 13 years' imprisonment.
It is apparent from the learned Judge's sentencing remarks…

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 "G"

Details

AGLC: R v "G" [2001] WASCA 160
Case: [2001] WASCA 160
Decision Date: 23 MAY 2001

CaseChat Overview and Summary

The case of R v "G" involved a mother who was sentenced for sexual offences against her children. The Crown appealed the sentencing decision, arguing that the sentence was inadequate given the severity of the crimes and the circumstances. The High Court was tasked with reviewing the exercise of discretion by the sentencing judge and determining whether the sentence was appropriate. The central issue was whether the sentencing judge had adequately considered the aggravating factors of the case, including the father's involvement and the mother's diminished capacity at the time of the offences.

The High Court found that the sentencing judge had not given sufficient weight to the aggravating factors, particularly the father's more severe crimes and the mother's diminished capacity. The court emphasised that the sentencing judge must consider all relevant factors, including the nature of the offences and the offender's capacity at the time, when exercising discretion. The court concluded that the sentencing judge had erred in not adequately considering these factors, leading to an inadequate sentence. Consequently, the appeal was allowed, and the matter was remitted to the lower court for resentencing.

In its decision, the High Court outlined the importance of considering the full context of the offences and the offender's capacity when sentencing. The court highlighted that the mother's diminished capacity at the time of the offences was a significant mitigating factor that should have been given more weight. The court also noted the father's more severe crimes as an aggravating factor that warranted a heavier penalty. The High Court's decision underscored the need for sentencing judges to carefully weigh all relevant factors to ensure a just outcome.

The final orders of the court were that the appeal be allowed, the sentence be quashed, and the matter be remitted to the lower court for resentencing, with directions to consider the full context of the offences and the offender's capacity. The court's decision provided clear guidance to sentencing judges on the importance of considering all relevant factors in sexual offence cases, particularly where there are multiple offenders and diminished capacity is a mitigating factor.

Orders