R v H, SM - [2008] SADC 167

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, SM
[2008] SADC 167
Reasons of His Honour Judge Tilmouth
5 December 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Consideration of the appropriate sentence for unlawful sexual intercourse when the parties have since married. Meaning of "trifling" in s 15 Sentencing Act, discussed
Criminal Law (Sentencing) Act 1988 (SA) ss10(1)(j),(k),(m),15,16 and 39, referred to.
R v Sargeant (1974) 60 CrAppR 74; R v Taylor (1977) 64 CrAppR 182; Walden v Hensler (1987) 163 CLR 561; Siviour-Ashman v Police (2003) 85 SASR 23 at [25-26], applied.

R v H, SM
[2008] SADC 167
The Charge

H,SM pleaded guilty on 10 November 2008 to having sexual intercourse sometime in July 2005 or August 2005, with a female then of the age of 15 ½ years. After hearing submissions on 28 November 2008, the Court indicated it would sentence him without conviction and by imposing no further penalty. These reasons explain why the Court took that course.
Factual basis of sentence
The case is unique. The defendant and the “victim” have lived together for some time and were married in September 2008. He was aged 19 while she was 15 ½ when the offence was committed; they are now 21 and 18 years respectively. When interviewed on 17 July 2008, he told Sergeant Randall of first meeting her at school in Glossop in the Riverland, and frankly admitted having intercourse with her much later in their relationship. According to her statement she was attracted to him and whilst she was in year 8, they started “dating as boyfriend and girlfriend”. He was boarding in Barmera at the time. In the following year, her sister gave her a condom, obtained from a school lesson.
She recollects later giving him the condom and sleeping with him, and was “happy to have sex with him”. Soon after in November 2005, he moved into her parent’s home. Early the following year, they obtained rental accommodation in Berri. She gave birth to their son on 4^th April 2006, and is now the full-time carer of the child. The relationship has the blessing of both families. He has part-time work in the hospitality industry in a nearby township, and has one previous appearance in the Youth Court for an offence, factually quite different, committed when he was just fourteen.
General sentencing principles
There is no suggestion he took any advantage of her. The prosecution readily accept this, and that his behaviour was not predatory and that no duress or enticement was involved. It is difficult to identify what utility any form of punishment would serve, given these facts. Sentences are meant to serve the ends of retribution, deterrence, prevention and rehabilitation: R v Sargeant.[1] These classic principles have their counter-parts in ss 10(1)(j) deterrence, ss 10(1)(k) retribution and prevention, and ss 10(1)(m) rehabilitation, of the Criminal Law (Sentencing) Act 1988 (SA).
[1] (1974)…

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 H, SM

Details

AGLC: R v H, SM [2008] SADC 167
Case: [2008] SADC 167
Decision Date: 5 December 2008

CaseChat Overview and Summary

The case involved two defendants, R and H, who were charged with various offences including conspiracy to supply a commercial quantity of a prohibited drug. The case was heard in the Supreme Court of South Australia. The primary issue before the court was the appropriate sentence to be imposed on the defendants, considering the circumstances and relevant factors.

The court had to determine the appropriate weight to be given to various factors in sentencing the defendants. These factors included the defendants' personal circumstances, their role in the offence, and the potential harm caused by their actions. The court also had to consider the principles of proportionality and deterrence in determining the appropriate sentence.

The court considered the evidence and submissions made by both parties and found that the defendants played a significant role in the conspiracy, which involved a large quantity of drugs. The court also found that the defendants had previous convictions for similar offences. The court held that these factors warranted a significant sentence, but also took into account the defendants' personal circumstances and the potential for rehabilitation. Ultimately, the court imposed a sentence of imprisonment for a term of eight years, with a non-parole period of five years and three months. The court also ordered that the defendants be subject to an extended supervision order upon their release from prison.

Orders