(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Kourakis)
16 April 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
Appeal against sentence - defendant and appellant pleaded guilty to two counts of indecent assault contrary to section 56 of the Criminal Law Consolidation Act 1935 (SA) - single sentence imposed pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) of four years and six months imprisonment reduced from five years on account of the defendant's pleas of guilty - that sentence ordered to be served cumulatively on term of imprisonment of five years imposed on 9 February 2009 - the offending the subject of that sentence was part of the same course of conduct as the offending the subject of this appeal - having regard to combined head sentence of nine years and six months, sentencing Judge extended defendant's non-parole period from three years to six years - whether Judge failed to have proper regard to sentence imposed on 9 February 2009 - whether sentence imposed having regard to total term of imprisonment faced by defendant was crushing in the circumstances - whether Judge erred in application of the principle of totality.
Held: appeal dismissed - sentencing Judge had appropriate regard to sentence imposed on 9 February 2009 and to the principle of totality - sentence imposed appropriate in the circumstances and well within the discretion of the sentencing Judge.
Court of Criminal Appeal Gray, Vanstone and Kourakis JJ
GRAY J:
This is an appeal against sentence.
Background
The defendant and appellant, Denis Norman Horstmann, pleaded guilty in the District Court to two counts of indecent assault, contrary to section 56 of the Criminal Law Consolidation Act 1935 (SA). Those assaults were committed…
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 Horstmann [2010] SASC 103
Case
[2010] SASC 103
Decision Date
CaseChat Overview and Summary
The case of R v Horstmann involves an appeal against sentence. The defendant and appellant, Denis Norman Horstmann, pleaded guilty to two counts of indecent assault. The first count involved indecent assault of a 12-year-old boy, W, in 2003. The second count involved indecent assault of an 8-year-old boy, H, over an 18-month period involving 14 separate incidents. The sentencing Judge imposed a single sentence of four years and six months imprisonment, reduced from five years due to the defendant's guilty pleas. This sentence was to be served cumulatively on a five-year sentence imposed on 9 February 2009. The Judge extended the defendant's non-parole period from three years to six years.
The legal issues in this case centred around whether the sentencing Judge failed to properly consider the sentence imposed on 9 February 2009, whether the imposed sentence, considering the total term of imprisonment faced by the defendant, was excessive, and whether the Judge erred in the application of the principle of totality. The Court of Criminal Appeal has no power to set aside or vary the sentence unless it is affected by an error, such as a failure to take into account relevant matters, having regard to irrelevant matters, or unreasonableness. In this case, the Court found no such error in the Judge's application of the principle of totality, and dismissed the appeal.
The Court of Criminal Appeal held that the sentence imposed was appropriate in the circumstances and was reflective of the entirety of the criminal conduct. The sentence reflected both the legislative intent of Parliament and judicial comments on the need to protect children from predatory behaviour such as that of the defendant. The approach taken to the sentencing exercise was strictly orthodox, and the cumulative sentence imposed and the extension of the non-parole period were well within the available range. Therefore, the appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
This is an appeal against sentence.Background The defendant and appellant, Denis Norman Horstmann, pleaded guilty in the District Court to two counts of indecent assault, contrary to section 56 of the Criminal Law Consolidation Act 1935 (SA). Those assaults were committed in 2003 against two brothers, W and H. The defendant lived near the grandparents of W and H and befriended the grandparents apparently in order to get close to their young grandchildren. The first count concerned the indecent assault of W, who was 12 years old at the time of the offending. W was staying with his grandparents in Adelaide in order to have medical treatment. The defendant invited W to come to his house to shoot a slug gun. Once there, the defendant took W into his bedroom and rubbed cream on his face. The defendant then told W that he needed to check his back and proceeded to put his hand down the back of W’s pants and rub his buttocks and between his buttocks. The second count of indecent assault was committed against H and was representative of a course of conduct over some 18 months, involving 14 separate incidents. H was about 8 years old at the time of the first of those incidents. Like his brother, he was staying with his grandparents and went to the defendant’s house where he had been invited to play with, or work on, motorcycles, cars and guns. The defendant had guns in his bedroom and was cleaning them with H when he suggested that H had a lot of pimples and that he would check to see whether H had any on his buttocks. The appellant pulled down H’s pants and underwear and knelt behind him. He then rubbed what he said was pimple cream in between H’s legs and near his groin. The defendant then rubbed cream on H’s buttocks and between his buttocks. He told H not to tell anyone about what had happened. This behaviour was repeated on a number of occasions and progressed to the appellant touching H’s penis and testicles. The maximum penalty for the first count of indecent assault, where the victim was 12 years of age, was imprisonment for eight years. The maximum penalty for the second count, where the victim was under 12 years of age, was imprisonment for 10 years.[1][1] Criminal Law Consolidation Act 1935 (SA) section 56. This provision was substituted with a new section 56 in 2005 by the commencement of the Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA), which amended the applicable penalties. The sentencing Judge imposed a single sentence pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), although noting that had he not done so, he would have made the sentences cumulative. The Judge fixed a term of imprisonment of four years and six months and indicated that but for the defendant’s guilty pleas, he would have fixed a head sentence of imprisonment of five years. That sentence was ordered to be served cumulatively on a sentence of fives years imprisonment imposed by Millsteed DCJ on 9 February 2009. Having regard to the total combined head sentence of nine years and six months, the Judge extended the defendant’s existing non-parole period from three years to six years.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
In my view, the sentence imposed was appropriate in the circumstances and was reflective of the entirety of the criminal conduct. The sentence reflects both the legislative intent of Parliament and judicial comments on the need to protect children from predatory behaviour such as that of the defendant.[21] It was a sentence well within the discretion of the sentencing Judge. [21] See eg Beattie v R (1993) 169 LSJS 266; R v Bibl (2004) 89 SASR 147.Conclusion I would dismiss the appeal. VANSTONE J: The sentence under appeal is one of four and a half years imprisonment to be served cumulatively upon a five year sentence already being served by the appellant, with the non-parole period being extended from three to six years, for two counts of indecent assault committed in 2003. The victim of one count was 12 years of age at the time of the offending. The other victim was eight years old and the count in relation to him was representative of a course of conduct. In my view the sentence imposed on the appellant was moderate. The appellant’s history of similar offending was a matter of grave aggravation. The common features of all the crimes were premeditation, ingratiation and breach of trust. It seems that the appellant learned little, if anything, from his 1994 prison sentence and the subsequent suspended sentence. The appellant’s counsel could not point to any express error by the judge. He sought to invoke the totality principle and to argue that more emphasis should have been placed on the appellant’s prospects of rehabilitation, such as they are. I consider that the arguments are without merit. The approach taken to the sentencing exercise was strictly orthodox and the cumulative sentence imposed and the extension of the non-parole period were well within the available range. I agree that the appeal should be dismissed. KOURAKIS J: On an appeal against sentence, the Court of Criminal Appeal has no power to set aside or vary that sentence unless it is satisfied that the sentence is affected by an error of the type identified in House v The King[22]: a failure to take into account relevant matters; having regard to irrelevant matters; or unreasonableness (manifest excess or inadequacy).[23] I shall refer to the first two errors as process errors and the last as an outcome error. Where either a process error or an outcome error has been made, the Court of Criminal Appeal may interfere. [22] (1936) 55 CLR 499 at 504-5.[23] It needs to be emphasised that a failure to give adequate weight to a relevant matter is not in itself an appellable error; only a failure to have regard to it at all is an error which justifies interference with the discretion. On an appeal against the exercise of the sentencing discretion, a failure to give adequate weight to a matter is only of any significance if it has resulted in an outcome error. Plainly enough, in the case of an outcome error it is implicit in a finding of manifest excess or inadequacy that the Court of Criminal Appeal has formed the view that a different sentence should have been passed and it will vary the sentence accordingly.