(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby)
30 November 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
Crown appeal against sentence.
The respondent pleaded guilty to one count of unlawful sexual intercourse.
The offending involved one brief episode of penile-vaginal sexual intercourse on 10 December 2022. At that time the respondent was 18 years and three months, and the complainant was 15 years and 11 months. They had been in a relationship for around two months, during which they had engaged in various consensual sexual activity, but not penile-vaginal intercourse.
The sentencing judge discharged the respondent without recording a conviction, and without imposing any other penalty, on condition that he enter into a bond in the sum of $50 to be of good behaviour for 18 months on various conditions. In the event of breach, the respondent is at risk of being called up for sentence.
The application for permission to appeal focussed on the refusal by the sentencing judge to impose a conviction.
The Court held (dismissing the application for permission to appeal):
1.There is a clear difference between a case of offending by a mature adult against a child of four or 13 years, particularly where it occurs in breach of a position of trust and authority, as against offending by a young adult of 18 against a child of 15 years and 11 months where there is no exploitation of a position of trust and authority.
2.In many cases of unlawful sexual intercourse the ordinary penalty will involve both a conviction and a sentence of imprisonment. However, in this case the offending occurred in “prescribed circumstances”, and it was open to suspend any sentence of imprisonment, order that it be served on home detention, or impose a bond to be of good behaviour.
3.The power to refrain from recording a conviction is an exception to the ordinary rule, and must be exercised sparingly. The circumstances of the offending and the offender did not in this case warrant the favourable exercise of discretion to refrain from recording a conviction.
4.Nonetheless, the failure to record a conviction has not produced a sentence which is so low and disproportionate to the seriousness of the offending, and the circumstances of this young offender, that it undermines public confidence in the administration of justice.
[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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AGLC
R v Harris [2023] SASCA 129
Case
[2023] SASCA 129
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal against sentence brought by the Crown. The appeal court comprised Livesey P, Lovell and Bleby JJ.
The central legal issue before the Court was whether material error had been established to justify appellate intervention on a Crown appeal against sentence, specifically concerning the failure to record a conviction.
The Court reasoned that while material error had been established, this alone was insufficient to warrant intervention on a prosecution appeal against sentence. The Court applied the principle that intervention is only justified where the sentence is so low and disproportionate to the seriousness of the offending and the circumstances of the offender that it undermines public confidence in the administration of justice. The Court noted that the prosecution's submissions before the sentencing judge were not markedly different from those made on appeal, and that the sentencing judge had only considered the option of imposing a bond under s 97, which was not the focus of the present application.
The Court concluded that the failure to record a conviction did not result in a sentence that undermined public confidence in the administration of justice, and therefore dismissed the application for permission to appeal sentence.
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
Finally, it has been seen that the prosecution twice submitted to the sentencing judge that “all sentencing dispositions were open”. However, this is not a case where it can be fairly said that there is a marked difference between the approach taken by the prosecution before the sentencing judge and the approach urged on the appeal against sentence.[55] Neither her Honour nor counsel for the respondent addressed whether this was a proper case in which no conviction should be recorded. The sentencing judge asked only whether it was outside the sentencing court’s discretion to utilise s 97 and impose a bond. Only that sentencing option was addressed by the prosecution. That option is not the focus of the present application.[55] Everett v The Queen (1994) 181 CLR 295, 299-300 (Brennan, Deane, Dawson and Gaudron JJ); R v Beaumont [2023] SASCA 128.Conclusion Whilst material error has been established, more must be shown to justify this Court’s principled intervention on a prosecution appeal against sentence. The failure to record a conviction in this case has not produced a sentence which is so low and disproportionate to the seriousness of the offending and the circumstances of this young offender that it undermines public confidence in the administration of justice.[56] [56] Everett v The Queen (1994) 181 CLR 295, 300 (Brennan, Deane, Dawson and Gaudron JJ); Griffiths v The Queen (1977) 137 CLR 293, 310 (Barwick CJ); R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ). The application for permission to appeal sentence should be dismissed.