R v H No. Sccrm-03-197

[2003] SASC 352

R v H
[2003] SASC 352

Court of Criminal Appeal:       Doyle CJ, Prior and Vanstone JJ

1. DOYLE CJ, PRIOR and VANSTONE JJ:      Mr H has applied for leave to appeal against a sentence imposed by the District Court.

2. A judge of this court refused leave to appeal.  Mr H has asked that his application be considered and determined by the Full Court.  He did not ask that the court exercise its power to order that the application be listed for oral argument.

3. Accordingly, the application has been considered in private by the court comprising Doyle CJ, Prior J and Vanstone J.  For these purposes the court has considered the lengthy written submission put to the sentencing judge on behalf of Mr H, the written submission filed on behalf of the Director, the judge’s detailed sentencing remarks and the transcript of submissions on the application for leave to appeal before a judge of this court.

4. Mr H pleaded guilty to four offences against his stepdaughter.  The offences were committed between late 2000 and early 2002.  One offence was an offence of procuring an act of gross indecency involving a child under the age of 16 years.  The victim was 15 years of age.  That attracted a maximum penalty of imprisonment for three years.  The other three offences were offences of unlawful sexual intercourse with a person under the age of 17 years.  The victim was 15 and 16 years of age when the offences were committed.  The maximum penalty for those offences is seven years’ imprisonment.

5. The offences to which Mr H pleaded guilty were representative of a course of conduct over a period of about 18 months.  Mr H was to be sentenced only for the four offences in question.  However, the significance of the other incidents is that he could not claim that the offences to which he pleaded guilty were isolated incidents.

6. The offences involved a serious abuse of the relationship between Mr H and his stepdaughter.  The offences have had a significant and continuing effect on her.  Mr H was 37 years of age.  Material before the judge indicates that the offences were linked to dissatisfaction with his employment, problems in his marriage and the death of his father.  He appears to have developed a depressive condition which led to the development of an infatuation for his stepdaughter.

7. These are very serious offences, and while there are mitigating circumstances in the matters referred to, they remain very serious offences nevertheless.

8. The judge imposed a single sentence of imprisonment for six years, and fixed a non-parole period of three years.  Making a full allowance for the plea of guilty, for the mitigating circumstances and for the very high regard in which Mr H is apparently held by those who know him, this was nevertheless a moderate sentence.  There is no reasonable prospect of it being held to be excessive.

9. The thrust of the argument before the single judge, and the apparent thrust of the grounds of appeal, is that the judge erred in failing to suspend the sentence.

10. The court is of the opinion that that argument has no reasonable prospect of success.  The judge referred to all relevant matters.  It cannot be said that he overlooked anything.  The fact that a large number of references were provided to the judge, demonstrating the high regard in which Mr H was held by those who knew him is a relevant matter, but no more than that.  Considerations of general deterrence remain very important.  The fact that there was a low risk of Mr H reoffending was also a relevant matter, but again only one matter to be taken into account.  The court has taken into account these matters, and the other matters referred to in the submissions before the single judge.

11. The court is of opinion that the argument that the sentence should have been suspended has no reasonable prospect of success, and accordingly leave to appeal is refused.