R v Knoote-Parke - [2016] SASCFC 37

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KNOOTE-PARKE
[2016] SASCFC 37
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Blue and The Honourable Justice Doyle)
6 April 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - GOOD CHARACTER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
The appellant pleaded guilty to four counts of unlawful sexual intercourse. The sentencing judge imposed one sentence of imprisonment for all four offences. His Honour fixed a head sentence of three years two months imprisonment, with a non-parole period of 21 months.
The appellant appealed on the ground that the sentencing judge erred in holding that because the appellant’s previous good character had assisted him in the commission of his offences, it could not have any mitigatory effect upon his sentence.
Held per Doyle J (Sulan and Blue JJ agreeing), allowing the appeal:
1. In respect of the two offences committed prior to the introduction of s 10(3)(ba) of the Criminal Law (Sentencing) Act 1988 (SA), the sentencing judge erred in affording the appellant’s good character no weight at all.
Criminal Law Consolidation Act 1935 (SA) s 49(3); Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 10(3), s 10(3)(ba), s 10(1), s 10(1)(l), s 10(1)(m), referred to.
Ryan v The Queen (2001) 206 CLR 267; R v Liddy (No 2) (2002) 84 SASR 231, discussed.
R v Horstmann (2010) 269 LSJS 42; R v Kreutzer (2013) 118 SASR 211; House v The King (1936) 55 CLR 499; KBA v R [2015] NSWCCA 55; R v Maynard (2014) 121 SASR 181; R v Miller (2000) 76 SASR 151, considered.

R v KNOOTE-PARKE
[2016] SASCFC 37
Court of Criminal Appeal: Sulan, Blue and Doyle JJ
SULAN J:

I agree with Doyle J. I add the following comments.
The sentencing process is complex. It requires the sentencing Court to have regard to various factors, to weigh them and balance them in each individual case. Factors are both mitigating and aggravating. Some are neither, but nevertheless are relevant. Clearly the seriousness of the offence is relevant. The seriousness of the offence must also be viewed in the context of the gravity of the offending. As Doyle J has explained the offending of Ryan[1] and Liddy[2] is far different from the appellant’s offending. The sentencing process also requires the Court to consider other factors such as age of the offender and victim, whether the offending was a course of conduct and for how long that conduct continued. Factors of remorse and rehabilitation are relevant. As Doyle J has stated, some of the relevant matters overlap and cannot be considered in isolation of others. In my opinion legislators need to be cautious when legislating to limit the courts discretion…

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 Knoote-Parke

Details

AGLC: R v Knoote-Parke [2016] SASCFC 37
Case: [2016] SASCFC 37
Decision Date: 6 April 2016

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, R v Knoote-Parke, by a sentencing judge. The dispute revolved around whether the sentence was appropriate given the nature of the offence and the personal circumstances of the offender. The matter was heard by Sulan, Blue and Doyle JJ.

The primary legal issue before the court was whether the sentencing judge erred in refusing to suspend the sentence imposed on the appellant. This required the court to consider the seriousness of the offending, the need for general deterrence, and the personal factors relating to the appellant, including evidence of good character.

The court acknowledged the significance of the appellant's personal circumstances, including evidence of good character. However, it found that the offending remained serious and that the need for general deterrence was substantial. Consequently, the court concluded that there were no good reasons to suspend the sentence. The court granted permission to appeal, allowed the appeal, and set aside the original sentence. A head sentence of two years and six months imprisonment was imposed, with a non-parole period of 12 months, commencing on 13 August 2015.

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

However, despite the significance of these factors personal to the appellant, the offending remains serious, and the need for general deterrence remains great. In the circumstances, I do not accept that there exists good reason to suspend the sentence I would impose. I would therefore decline to suspend that sentence.Conclusion I would grant permission to appeal, allow the appeal and set aside the sentence imposed by the sentencing judge. I would impose a head sentence of two years six months imprisonment. I would fix a non-parole period of 12 months, with the sentence and non-parole period to commence on 13 August 2015.

Ratio Decidendi

Legal Principle Established

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