R v GIBBS - [2017] SASCFC 140

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GIBBS
[2017] SASCFC 140
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Bampton)
26 October 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The Director of Public Prosecutions applies for permission to appeal against a sentence imposed in the District Court for persistent sexual exploitation of a child and aggravated indecent assault. The respondent was sentenced to imprisonment for seven years and six months, with a non-parole period of three and a half years. The Director contends that the sentence is manifestly inadequate and departs from the standards set by this Court for offences of this nature.
Held: Vanstone J (Kourakis CJ and Bampton J agreeing). Permission to appeal is granted and the appeal allowed. The standards of sentencing for offences such as these were set down in R v D and were given legislative force by Parliament in 2005. If in sentencing a judge is to depart from those standards some explanation must be given. None was given in this case and neither was there any reason for such a departure.
The sentence imposed in the District Court involves a significant departure from the applicable standards, is manifestly inadequate and is set aside. In its place is imposed a single sentence of 11 years and nine months imprisonment, with a non-parole period of seven years.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 29D; Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA) s 8, referred to.
R v D (1997) 69 SASR 413; Wong v The Queen (2001) 207 CLR 584; Director of Public Prosecutions v Dalgliesh [2017] HCA 41; R v Bonython-Wright (2013) 117 SASR 410, considered.

R v GIBBS
[2017] SASCFC 140
Court of Criminal Appeal: Kourakis CJ, Vanstone and Bampton JJ

KOURAKIS CJ: I would grant permission to appeal and allow the appeal for the reasons given by Vanstone J. I would join in imposing the sentence her Honour proposes.
VANSTONE J: The Director of Public Prosecutions (SA) applies for permission to appeal against a sentence imposed in the District Court for persistent sexual exploitation of a child (whom I shall call V1) and aggravated indecent assault of V1’s younger sister, V2. The sentencing Judge imposed a single sentence of imprisonment for seven years and six months, with a non-parole period of three and a half years. The Director argues that the sentence is manifestly inadequate and significantly below the standards set by this Court for offences of this nature.
Background
The Information filed in the District Court on 8 July 2016 contained five counts. The first four of them alleged offences against V1 and count 5 related to V2. On the day which was to be the…

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 GIBBS

Details

AGLC: R v Gibbs [2017] SASCFC 140
Case: [2017] SASCFC 140
Decision Date: 26 October 2017

CaseChat Overview and Summary

This matter concerned an appeal by the Crown against the sentence imposed on the respondent, R v Gibbs, in the Supreme Court of South Australia. The appeal focused on whether the sentencing judge had erred in applying the sentencing standards established in *R v D* for child sexual abuse offences.

The central legal issue before the Full Court was to determine the appropriate sentencing standard for the respondent's offences, specifically whether the sentencing judge had correctly applied the principles of *R v D* and the subsequent legislative amendment to section 29D of the *Criminal Law (Sentencing) Act 1988* (SA). The court was required to consider whether the respondent's individual circumstances justified a departure from the established sentencing benchmark and whether the non-parole period was appropriately set.

The Full Court, in its reasoning, emphasised the importance of consistency in sentencing, particularly for child sexual abuse offences, citing *Wong v The Queen* and *Director of Public Prosecutions v Dalgliesh*. It noted that section 29D of the *Criminal Law (Sentencing) Act 1988* (SA) had given legislative force to the sentencing standards in *R v D*, requiring their application unless a specific explanation for departure was provided. While acknowledging the inherent flexibility in sentencing, the court stressed that any deviation from the standard must be judicially exercised and supported by circumstances distinguishing the case from the generality of cases. The court found that the sentencing judge had not adequately justified a departure from the established standard and had set a non-parole period disproportionately low.

Consequently, the Full Court granted permission to appeal, allowed the appeal, set aside the original sentence, and imposed a new sentence of 11 years and nine months imprisonment, with a non-parole period of seven years, to be taken to have commenced on 3 July 2017.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In resentencing I would take a starting point of 12 years imprisonment for count 1. If count 5 stood alone, I consider it would justify a sentence of two years imprisonment. If s 18A of the Criminal Law (Sentencing) Act 1988 (SA) is to be utilised, I would add a period of one year to the starting point in recognition of the close connection between the two offences. I would use the discount of about 10 per cent chosen by the Judge to reduce the head sentence to 11 years and nine months. I would select a non-parole period at a greater ratio than did the Judge, as I can find no reason for the low proportion utilised by him. I would set the non‑parole period at seven years.Conclusion I would grant permission to appeal, allow the appeal, set aside the sentence imposed and, in its place, impose a single sentence of 11 years and nine months imprisonment, with a non-parole period of seven years, to be taken to have commenced on 3 July 2017. BAMPTON J: I agree with the reasons of Vanstone J and the orders proposed.

Ratio Decidendi

Legal Principle Established

Mr M Mead, for the respondent, argues that any standard fixed by this Court is necessarily a flexible one, as indeed the disposition in D’s case demonstrates. Counsel points out that here, there was no formal relationship of trust, there was no digital or penile penetration, and that the psychologist who examined the respondent found some reason in the respondent’s background to explain the offences, and considered that the respondent had genuine remorse for his actions. Consideration In Wong v The Queen (2001) 207 CLR 584 Gleeson CJ referred at [6] to the importance of consistency in sentencing:One of the legitimate objectives of such guidance is to reduce the incidence of unnecessary and inappropriate inconsistency. All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.The last part of this statement was quoted with approval in Director of Public Prosecutions v Dalgliesh [2017] HCA 41 by Kiefel CJ, Bell and Keane JJ. The desirability of consistency in cases of child sexual abuse is only the greater having regard to the increasing numbers of such cases that have come before the courts in the last two decades or so. By legislative amendment to the Criminal Law (Sentencing) Act 1988 (SA), passed in 2005, Parliament gave legislative force to the standards set in R v D and provided that those standards should apply to offences committed both before and after that decision: s 29D, inserted by Act No. 31 of 2005, commencing 11 August 2005. In R v Bonython-Wright (2013) 117 SASR 410 at 429, Kourakis CJ said, with the concurrence of Blue and Stanley JJ, that the standard should be applied unless explanation was given for why it should not apply. His Honour said:[97] The primary purpose of the enactment of s 29D of the Sentencing Act was to legislatively abrogate the common law practice of courts forewarning the public of an increase in sentencing standards. That practice may have delayed the imposition of the standard enunciated in R v D and may have limited it to offences committed after that decision was handed down. However, the enactment of s 29D of the Sentencing Act also recognised the seriousness with which the community regards offences of that kind.[98] It is not open to sentencing judges, nor to the Full Court, to adopt another standard unless and until the clear statement of principle in R v D is overruled or amended by a Full Court of five. Nonetheless, the sentencing standard retains the flexibility to which Doyle CJ referred. The discretion which the flexibility allows must be exercised judicially by reference to the standard, and not in a way which undermines it. The selection of a different starting point should be supported by reference to circumstances which distinguish the case at bar from the generality of cases to which Doyle CJ referred.