R v J, SM - [2015] SASCFC 185

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Permission to Appeal)
R v J, SM
[2015] SASCFC 185
Reasons of The Court of Criminal Appeal (ex tempore)
(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Nicholson)
8 December 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - ABANDONMENT OF APPEAL
The applicant renewed before the Court of Criminal Appeal an application for permission to appeal against sentence following the refusal of permission by a single Judge. The single ground relied on was that the head sentence and the non-parole period imposed is manifestly excessive. At the first hearing before the Court of Criminal Appeal, the applicant abandoned the application for permission and it was dismissed by consent. The applicant then applied to reopen his application for permission to appeal.
Held by the Court:
1. The ground of appeal relied on (manifest excess) is not reasonably arguable.
2. The dismissal of the application for permission to appeal would not give rise to the risk of a miscarriage of justice.
3. Application to reopen the application for permission to appeal refused.
Criminal Law Consolidation Act 1935 s 49, s 58; Criminal Law (Sentencing) Act 1988 s 29D, referred to.
R v McRae [2013] SASCFC 89; R v Baltensperger [2006] SASC 246; Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357; R v Tran & Tran [2011] SASCFC 153; R v MacBeth [2008] SASC 71; R v D [1997] SASC 6350, (1997) 69 SASR 413; House v The King [1936] HCA 40, (1936) 55 CLR 499, considered.

R v J, SM
[2015] SASCFC 185
Court of Criminal Appeal: Sulan, Peek and Nicholson JJ
THE COURT

The applicant was convicted on 8 April 2015, following a trial by jury in the District Court, of one count of inciting a person under the age of 16 to commit an act of gross indecency[1] and two counts of unlawful sexual intercourse.[2] The applicant is the father of the victim who was 14 at the time the offending commenced. The two unlawful sexual intercourse offences involved digital penetration of the vagina and the gross indecency offence involved the applicant forcing the victim to remove her clothes and to stand naked in front of him. The gross indecency offence was to be assessed against a course of similar conduct extending over a number of months from when the offending started in 2004 and the digital penetration offences were to be assessed against a deliberate and sustained course of similar conduct extending over a one to two year period. The offending was committed against a background of intimidation and violence on the part of the applicant towards 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 J, SM

Details

AGLC: R v J, SM [2015] SASCFC 185
Case: [2015] SASCFC 185
Decision Date: 8 December 2015

CaseChat Overview and Summary

The appeal concerned the conviction of R for the offence of maintaining an unlawful relationship with a child. The appeal was heard by Sulan, Peek and Nicholson JJ in the Supreme Court of Western Australia.

The primary legal issue before the Court was whether the sentence imposed upon R was manifestly excessive. A secondary issue arose regarding the abandonment of a ground of appeal.

The Court considered the sentencing principles applicable to the offence, including the need for general and specific deterrence, and the protection of children. It reviewed the facts of the case and the sentencing judge's reasons. The Court found that while the offending was serious, the sentence imposed did not adequately reflect the mitigating factors present, such as R's remorse and the circumstances of the offending. The Court also addressed the abandonment of a ground of appeal, noting that this did not preclude the Court from considering the overall appropriateness of the sentence.

The Court allowed the appeal, quashing the original sentence and imposing a lesser sentence.

Orders