(The Honourable Justice Debelle, The Honourable Justice Besanko and The Honourable Justice White)
23 February 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE
Appellant pleaded guilty to one count of indecent assault and three counts of unlawful sexual intercourse - Male victim aged between 15 and 16 years - Appellant made full admission of sexual relationship to police - Sentencing Judge imposed sentence of three years with non-parole period of one year - Judge declined to suspend sentence - Appeal against failure to suspend - Judge did not err in considering himself constrained to impose an immediate sentence of imprisonment - Sentence of imprisonment for offences of unlawful sexual intercourse may be suspended in an appropriate case - Decision to refuse to suspend sentence justified in this case - Appeal dismissed.
Court of Criminal Appeal: Debelle, Besanko and White JJ
DEBELLE J This appeal should be dismissed. I agree with the reasons of White J.
BESANKO J: In my opinion this appeal should be dismissed. I agree with the reasons for judgment of White J.
WHITE J:
Introduction
This is an appeal against a sentence imposed by a Judge of the District Court on 16 July 2004.
The appellant pleaded guilty to one offence of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 and to three counts of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act. The offences occurred during a period of approximately eight months between 19 October 1991 and 18 June 1992. The victim of the offences was born on 3 May 1976 and was therefore aged between…
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 Garrett [2005] SASC 230
Case
[2005] SASC 58
Decision Date
CaseChat Overview and Summary
In the case of R v Garrett, the appellant was convicted of one count of indecent assault and three counts of unlawful sexual intercourse involving a male victim aged between 15 and 16 years. The appellant had made a full admission of the sexual relationship to the police. The sentencing Judge imposed a sentence of three years with a non-parole period of one year and declined to suspend the sentence. The appellant appealed against the failure to suspend the sentence.
The central legal issue before the court was whether the sentencing Judge erred in not suspending the sentence. The court considered whether the Judge had correctly exercised his discretion in this matter and whether the decision to refuse to suspend the sentence was justified. The court examined the nature of the offences, the appellant's admissions, and the circumstances surrounding the case to determine the appropriate sentence.
The court concluded that the sentencing Judge did not err in considering himself constrained to impose an immediate sentence of imprisonment. Although a sentence of imprisonment for offences of unlawful sexual intercourse may be suspended in an appropriate case, the decision to refuse to suspend the sentence was justified in this instance. The court found that the appeal should be dismissed, affirming the decision of the lower court.
Consequently, the appeal was dismissed, and the original sentence stood as imposed by the sentencing Judge.
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
DEBELLE J
Even if this appeal had to be dealt with on the footing that the sentencing Judge failed to consider whether he should exercise his discretion to suspend the sentence and this Court had to sentence afresh, this is a case where the sentence should not be suspended. In this respect, I repeat the factors already identified in these reasons.Conclusion For the reasons given above, my opinion is that this appeal should be dismissed.