R v Jackson

Case [2014] SASCFC 101

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v JACKSON

[2014] SASCFC 101

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Stanley)

24 September 2014

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - CONSENT

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

Application by Director of Public Prosecutions for permission to appeal against suspension of sentence.

The respondent pleaded guilty to one count of unlawful sexual intercourse with AC at a time when the respondent was aged 30 and AC was three days short of 17.  The respondent was a serving police officer and in the period leading up to the offence had been taking a long statement from AC in relation to sexual offences by a man of a similar age to himself.  AC commenced sending to the respondent text messages of a sexual nature and indicating that she wanted to have sexual intercourse with him.  He responded in kind and they later met for that purpose.  The respondent admitted the offending at the earliest opportunity and resigned his position.  He was sentenced to one year and five months imprisonment with a non-parole period of nine months, suspended upon entry into a bond of $5000 to be of good behaviour for three years.  The Director of Public Prosecutions applied for permission to appeal against the suspension. 

Held per Peek J (refusing permission to appeal):

1.       The Judge correctly appreciated the significance of the respondent being a police officer who offended as a police officer and not in a private capacity; he specifically referred to those matters in his sentencing remarks. [13]

2.       The Judge did not proceed on an incorrect basis that the offending was mitigated by virtue of the sexual experience of AC and the desire expressed by AC to have sexual intercourse with the respondent. [20]-[23]

3.       The proposition that no reasonable Judge could have suspended a prison sentence in all of the above circumstances was not capable of being established in all of the circumstances. [25]

4. The principles of double jeopardy that arise in relation to appeals against suspended sentences by the Director of Public Prosecutions strongly militate in favour of refusing permission to appeal in the circumstances of this case: R v Kong [2013] SASCFC 15 applied. [26]-[28]

Criminal Law Consolidation Act 1935 s 49(3), referred to.
The Queen v B, J [2007] SASC 67; R v Kong [2013] SASCFC 15, applied.
R v Halse (1997) 70 SASR 456; R v McPartland and Polkinghorne [2014] SASCFC 84, discussed.
R v Harkin [2013] SASCFC 15; R v Marien (2011) 109 SASR 334;

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AGLC
R v Jackson [2014] SASCFC 101
Case
[2014] SASCFC 101
Decision Date

CaseChat Overview and Summary

The South Australian Court of Criminal Appeal considered an application by the Director of Public Prosecutions for leave to appeal against the sentence imposed on the respondent, a former police officer, for an offence involving unlawful sexual intercourse. The appeal concerned the decision of the sentencing judge to suspend the respondent's prison sentence.

The primary legal issues before the Court were whether the sentencing judge had erred in suspending the prison sentence, and whether the principles of double jeopardy, particularly in the context of Crown appeals against suspended sentences, militated against granting leave to appeal. The Court was required to determine if the sentencing judge had correctly appreciated the significance of the respondent's status as a police officer, whether the offending was mitigated by the victim's sexual experience or desire, and if the suspension of the sentence was a reasonable exercise of judicial discretion.

Peek J, with whom Blue and Stanley JJ agreed, refused permission to appeal. His Honour found that the sentencing judge had correctly appreciated the relevant factors, including the respondent's status as a police officer and had not proceeded on an incorrect basis regarding mitigation. The Court held that the proposition that no reasonable judge could have suspended the sentence in the circumstances was not established. Crucially, the Court applied the principles of double jeopardy, as discussed in *R v Kong*, which strongly favour refusing permission to appeal when a sentence has been suspended. The Court noted that while the Crown appeal raised considerations, the principles of double jeopardy, coupled with the respondent's early guilty plea, remorse, resignation from the police force, good character, and steps towards rehabilitation, meant that granting leave to appeal would be at too high a cost to justice.

Consequently, the Court ordered that permission to appeal be refused.

Orders

Orders of the court

Held per Peek J (refusing permission to appeal):

1. The Judge correctly appreciated the significance of the respondent being a police officer who offended as a police officer and not in a private capacity; he specifically referred to those matters in his sentencing remarks. [13]

2. The Judge did not proceed on an incorrect basis that the offending was mitigated by virtue of the sexual experience of AC and the desire expressed by AC to have sexual intercourse with the respondent. [20]-[23]

3. The proposition that no reasonable Judge could have suspended a prison sentence in all of the above circumstances was not capable of being established in all of the circumstances. [25]

4. The principles of double jeopardy that arise in relation to appeals against suspended sentences by the Director of Public Prosecutions strongly militate in favour of refusing permission to appeal in the circumstances of this case: R v Kong [2013] SASCFC 15 applied. [26]-[28]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J BLUE J
In Kong, there were added complications, one of which was that the Court was of the view that the term of imprisonment was manifestly inadequate. However, the Court was not persuaded that, even if a significantly longer term had been imposed, it would have been a plainly unreasonable exercise of the power to suspend that longer term. That being so, the Court considered that the appropriate disposition was to refuse permission to appeal. Their Honours stated:[14][100]However, we are not persuaded that suspension, even of the significantly longer sentence which, in our view, should have been imposed, would have been a plainly unreasonable exercise of the power conferred by s 38 of the Criminal Law (Sentencing) Act 1988 (SA). [101]Unsurprisingly, the Judge was much impressed by how the respondent had lifted himself out of the traumatic and deprived circumstances of his early years. He is highly regarded by his wife’s family and many others in the community. He is obviously a competent and diligent worker. The respondent has the capacity to make a substantial contribution to his community.[102]This Court must first deal with permission. There are circumstances which will produce an injustice if a Crown appeal is allowed, even in a case in which the sentence is erroneously lenient.[15] Factors such as a defendant’s personal circumstances, the defendant’s progress towards rehabilitation, the harshness of sentencing a person to custody who has been free in the community and has taken significant steps to rebuild his life are just some of the factors which are relevant to which the exercise of a residual discretion to refuse a Crown appeal.[103]It would be a crushing reversal of fortune for a man who left the dock nine months ago, believing that he would not be taken from his family and would be able to continue his rehabilitation in the community, to now be required to serve a lengthy and immediate custodial sentence.[104]In this case, to grant permission to the Crown to appeal and to allow the appeal would be at too high a cost, in terms of justice, to the defendant. Without reaching a final conclusion as to whether or not we would have suspended the longer sentence we would have imposed in an exercise of our discretion, which we acknowledge to be very favourable to the respondent, we would refuse permission to appeal.[14] [2013] SASCFC 15.[15] See Green & Quinn v The Queen (2011) 244 CLR 462, [2].Conclusion The present case is a fortiori that of Kong in that here the head sentence was within the range available to his Honour. As to suspension of sentence, the principles of double jeopardy strongly militate in favour of refusing permission to appeal in the circumstances of this case. Although there are opposing considerations which I have taken into account, I conclude that the appropriate order is that permission to appeal should be refused. I agree. STANLEY J: I would refuse permission to appeal. I agree with the reasons of Peek J.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J, BLUE J

In my view, the Judge did no more than have regard to an authority of this Court to which he was properly referred by counsel. There is no indication that he misapplied that authority.Consideration of the disposition of the application Even on the most serious view of the offending for which the Crown contends, there was material before his Honour which could support the exercise of the discretion to suspend the sentence. This included the isolated nature of the offending; the respondent’s early guilty plea; the respondent’s positive remorse and his swift resignation from the police force; the positive good character and antecedents of the respondent and the strong character reference material tendered to the Court. The Judge also noted “the steps that the respondent had undertaken to seek assistance and his engagement in rehabilitation” ─ his Honour here alludes to the fact that the respondent had, as at the date of the psychological report dated 31 March 2014 which was tendered on the sentencing proceedings, consulted with a psychologist on a regular basis on 19 occasions from 25 March 2013 and that this has had a positive effect on his rehabilitation. Further, the respondent has lost his career which affects him deeply; while this loss is not a substitute for the punishment that the Court must impose, nor should it be ignored as a background fact. His Honour’s assessment that the respondent is unlikely to ever re-offend would appear justified. Having regard to all of the above material, the proposition that no Judge could reasonably have suspended a prison sentence in all of the present circumstances is not capable of being established. Crown appeals against the suspension of a sentence In the recent decision of this Court in R v McPartland and Polkinghorne[6] the general principles in relation to the correct approach to a Crown appeal are discussed and I will not repeat what was said there. That case involved respondents who had received custodial prison sentences and did not deal with an application for permission to appeal against suspension of sentence. It has always been recognised that when a person has received a suspended sentence, the principles of double jeopardy loom large. In the decision of this Court in R v Kong, this matter is stressed. The Court there said:[7][6] [2014] SASCFC 84.[7] [2013] SASCFC 15.[33]The interrelationship between s 340 and 353 has been considered in R v Harkin.[8] The effect of s 340 is to remove the Court’s discretion to have regard to the principle of double jeopardy in sentencing a defendant, once it is decided that permission should be granted to the Director. Gray and Sulan JJ, in a joint judgment, observed that the words of s 340 make it clear that the Court is precluded from having regard to the rule relating to double jeopardy when resentencing. However, the rule still applies when considering whether permission to appeal should be granted to the Director. White J, in a separate judgment, agreed that that was the effect of s 340.[34]In R v Marien,[9] the Court, Gray, Sulan and Blue JJ, confirmed the decision in Harkin and concluded that s 340 does not displace the sentencing double jeopardy consideration in determining whether to grant permission to appeal. … [56]In R v Hicks,[10] the Court considered a prosecution appeal in which the main thrust of the attack on the sentence was directed against the suspension of the sentence. King CJ said:[11]The discretion to suspend the sentence exists where the court is of the opinion that, having regard to the factors enumerated in s 4(2a) of the Offenders Probation Act 1913, it is expedient to do so. Amongst the enumerated factors are character, antecedence, age and health. The learned sentencing judge formed that opinion and, unless it can be seen that there are no reasonable grounds upon which such an opinion could be formed, the discretion to suspend must be held to have arisen. If the discretion arose, it was for the learned sentencing judge to exercise it. It was his discretion and this Court is not authorised to substitute any view which it might hold as to the appropriate exercise of the discretion for that of the judge in whom it was vested by law.[57]In R v M, H,[12] Gray J, with whom Duggan and White JJ agreed, referred to the approach the Court should take in the case of a Crown appeal against the suspension of sentence. He observed:[13]Accordingly, a Crown appeal against suspension of sentence should be approached with great care, and the “rare and exceptional” test should be rigorously applied. Furthermore, an error must be identified before a sentence may be interfered with. As Kirby J explained in Dinsdale:As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.[8] (2011) 109 SASR 334.[9] [2011] SASCFC 116.[10] (1987) 45 SASR 270.[11] (1987) 45 SASR 270, 272.[12] [2007] SASC 41.[13] [2007] SASC 41, [19].