SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KENCH
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice Vanstone)
15 March 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
The appellant was convicted of five counts of unlawful sexual intercourse and two counts of indecent assault by a jury in the District Court - in sentencing the Judge imposed a head sentence of 10 years' imprisonment with a 6 year non parole period - the appellant appeals against sentence - discussion of the applicable standards to be applied in sentencing - whether the sentencing standards devised in R v D apply to offences committed before that judgment - whether the individual offences when taken together amount to a course of conduct - whether the sentences should be imposed cumulatively - discussion of totality principle - whether totality principle applies - appeal allowed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v D (1997) 69 SASR 413, discussed.
Postiglione v The Queen (1997) 189 CLR 295; DPP v O'Connor (1995) 65 SASR 250; O'Connell v The Queen (unreported, 19 June 1995, judgment no. S5123); R v Krawtschenko (unreported, 22 November 1996, judgment no. S5836); R v Benier (unreported, 13 March 1997, judgment no. S6077); R v Liddy (No 2) (2002) 84 SASR 231; R v P (2003) 87 SASR 287; R v Major (1998) 70 SASR 488; R v Place (2002) 81 SASR 395, considered.
R v KENCH
[2005] SASC 85Court of Criminal Appeal: Doyle CJ, Besanko and Vanstone JJ
DOYLE CJ: This is an appeal against a sentence imposed by the District Court. A Judge of this Court granted leave to appeal.
The offences and the sentence
The appellant was found guilty by a jury of five counts of unlawful sexual intercourse and two counts of indecent assault upon a boy.
The offences were committed on two occasions. One count of indecent assault and four counts of unlawful sexual intercourse were committed at the appellant’s home in a northern country town between December 1991 and April 1992. The other count of indecent assault and the remaining count of unlawful sexual intercourse were committed at a different northern town, where the victim lived, in 1993.
He was 13 years old at the time of the first group of offences, and about 15 years old at the time of the second group.
The maximum penalty for each count of unlawful sexual intercourse is seven years’ imprisonment. The maximum penalty for each indecent assault is imprisonment for eight years.
The appellant was about 35 years of age on the first occasion, and about 38 years of age when sentenced.
The appellant was an adult scout leader. The victim was a boy scout.…
Continue reading R v Kench
Sign in free to access the full text
- AGLC
- R v Kench [2005] SASC 85
- Case
- [2005] SASC 85
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the sentencing standards devised in R v D applied to offences committed before the judgment, whether the individual offences when taken together amounted to a course of conduct, and whether the sentences should be imposed cumulatively. The court also needed to consider the applicability of the totality principle.
The court held that the sentencing standards devised in R v D were not applicable to the present case as the offences were committed on two separate occasions. The court found that the offending conduct was not a continuing course of offending conduct, and even if the standard in D was applied, the sentence would have to reflect the fact that the offending conduct was confined to two separate occasions. The court held that the sentence imposed was too high, and that a sentence of about ten years' imprisonment might have been appropriate if the appellant had been guilty of repeated offences over a substantial period of time. The court considered the seriousness of the offences, the significant adverse effects on the victim and his family, the need for individual and general deterrence, and the prospects of the appellant's rehabilitation. The court concluded that it was appropriate to impose a single sentence of imprisonment for each group of offences, and that the second sentence should be served cumulatively upon the first sentence.
The appeal was allowed, and the court reduced the sentence to a combined head sentence of eight years' imprisonment, with a non-parole period of five years. The court exercised the power conferred by s 18A of the Act for the first group of offences, imposing a sentence of four years' imprisonment, and directed that the second sentence be served cumulatively upon the first sentence.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
It is appropriate to bear this sentencing pattern in mind, but being mindful that I have attempted to summarise the effect of a number of decisions in different cases. I have not identified a starting point that is to be used in future, I have merely summarised the effect of a number of decisions. Each case must be considered in light of all of the circumstances, but the decisions to which I refer provide a guide to the approach to sentencing prior to the decision of this Court in D. Consideration of submissions The Judge was guided by the decision in D in fixing a sentence of 10 years’ imprisonment. As it happens, I consider that the decision in D is of limited relevance to the present case. In the present case the offences were committed on two separate occasions. The offending conduct is not really a continuing course of offending conduct, although I do not overlook what I referred to as preparatory conduct by the appellant. Even were the standard in D to be applied to the present case, the sentence would have to reflect the fact that the offending conduct was confined to two separate occasions, a substantial period of time apart. As the standard indicated in D is not applicable, it is appropriate to have regard to sentences imposed before the decision in D. The pattern which emerges indicates that the sentence imposed in the present case is too high. A sentence of about ten years’ imprisonment might have been appropriate if the appellant had been guilty of repeated offences over a substantial period of time. I take into account the seriousness of the offences, and the significant adverse effects that they have had on the victim and his family. I have regard for the need for individual and general deterrence. The offences committed in 1995 mean that the appellant cannot be sentenced on the basis that he has subsequently ceased offending, and has been of good character. The prospects of the appellant’s rehabilitation are somewhat doubtful. There is no plea of guilty and no indication of contrition. In short, there is not much, if anything, by way of mitigation in the circumstances of the offence or of the appellant. I consider it appropriate to impose a single sentence of imprisonment, exercising the power conferred by s 18A of the Act for the first group of offences that occurred in about January 1992. They were all committed on the one occasion, and were part of the one incident. I would impose a sentence of four years’ imprisonment for this group of offences. For the same reasons I would impose a single sentence of imprisonment for the remaining two offences that occurred in 1993. I would again impose a sentence of four years’ imprisonment for these two offences. Although the number of offences on this occasion is less than on the earlier occasion, the sentence should reflect the fact that the appellant chose to repeat his offending conduct. I would direct that the second sentence be served cumulatively upon the first sentence. It is appropriate to make this order because each occasion represents a quite separate instance of offending conduct. In relation to the combined head sentence of eight years’ imprisonment, I would fix a non parole period of five years. In doing so I have had regard to the uncertainty about the appellant’s rehabilitation.