R v Kohlhagen

Case [2016] SASCFC 19

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v KOHLHAGEN

[2016] SASCFC 19

Judgment of The Court of Criminal Appeal

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

2 March 2016

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against sentence. The appellant was charged with the offences of aggravated making a child amenable to a sexual activity, aggravated indecent assault and unlawful sexual intercourse with a person under 14 years. He pleaded guilty to the offences in the District Court and, as such, was subject to a 20 per cent discount pursuant to section 10C of the Criminal Law (Sentencing) Act 1988 (SA). The Judge sentenced the appellant to a term of imprisonment of four years, eight months and 24 days, reduced from a head sentence of six years, with a non-parole period of two years, five months and 24 days, allowing credit of six days for time the appellant had spent in custody.

The appellant appealed against the sentence imposed by the Judge on a number of grounds. The first three grounds of appeal assert errors involving the appellant’s prospects of rehabilitation, the appellant’s remorse and insight into the offending, and the effect an immediate custodial sentence would have on the appellant’s treatment and rehabilitation. The final two grounds of appeal assert that the head sentence and non-parole period are manifestly excessive and the Judge erred in not suspending the sentence of imprisonment.

Held by Nicholson J (Peek J agreeing), allowing the appeal:

1.  In all of the circumstances, the head sentence imposed by the Judge was manifestly excessive. It is unnecessary to consider the remainder of the appellant’s grounds of appeal (at [49], [73]-[74]).

2.  The sentence of the District Court is set aside. The appellant is resentenced to a head sentence of four years and nine months imprisonment, reduced to three years and ten months imprisonment, with a non-parole period of 23 months. The head sentence and non-parole period are backdated to commence on 21 July 2015 (at [75]).

3.  The seriousness of the offending and the need for general deterrence are such as to exclude good reason to suspend the sentence (at [76]). 

Held per Blue J (dissenting):

1.  The Judge did not err in his assessment concerning prospects of rehabilitation (at [18]).

2.  The Judge did not err in his assessment concerning remorse (at [24]).

3.  The Judge did not err concerning the effect of an immediate custodial sentence on the appellant’s treatment and rehabilitation (at [28]).

4.  The head sentence imposed was not manifestly excessive (at [40]).

5.  The Judge did not err in the exercise of his discretion…

Continue reading R v Kohlhagen

Sign in free to access the full text

Details
AGLC
R v Kohlhagen [2016] SASCFC 19
Case
[2016] SASCFC 19
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal against sentence by the appellant, Kohlhagen, to the Full Court of the Supreme Court of South Australia, presided over by Peek, Blue, and Nicholson JJ. The appellant had pleaded guilty in the District Court to aggravated making a child amenable to sexual activity, aggravated indecent assault, and unlawful sexual intercourse with a person under 14 years. The sentencing judge imposed a single penalty for all three offences, commencing with a six-year term of imprisonment, reduced to four years, eight months, and 24 days to account for the guilty plea and time spent in custody, with a non-parole period of two years, five months, and 24 days.

The appeal raised several grounds, including that the sentencing judge erred in finding no satisfactory explanation for the offending, in failing to adequately consider the adverse impact of immediate custody on the appellant's rehabilitation, in misjudging the appellant's appreciation of the impact on the victim and his remorse, and that the head sentence and non-parole period were manifestly excessive. A further ground argued that the sentencing judge erred in declining to suspend the sentence. The central legal issue was whether the sentencing judge had erred in the exercise of their discretion in imposing the sentence, particularly in relation to the weight given to psychological evidence and the appellant's prospects of rehabilitation, and whether the sentence was demonstrably excessive or inappropriate.

The Full Court considered the psychological reports, which indicated the appellant had a history of childhood sexual abuse and struggled with trust, and that his intoxication was a significant disinhibitor. However, the court noted that the sentencing judge was troubled by the lack of a clear explanation for the offending, even with the psychological input. The judge found that the appellant should not have needed explicit signals of discomfort from the victim to cease his actions. The court ultimately found that the sentencing judge had not erred in concluding that there was no good reason to suspend the sentence and that the sentence imposed was not manifestly excessive.

The appeal was dismissed, with permission to appeal refused on the ground concerning the suspension of the 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

The Judge was correct to view the offending itself, considered in the context of the effect it has had on the victim and her family, as very serious. The psychological evidence and the Judge’s approach Very soon after pleading guilty in the District Court on 16 March 2015, the appellant attended three sessions with a clinical psychologist who undertook a psychological assessment and also provided some cognitive behavioural therapy dealing, in particular, with the appellant’s alcohol consumption problem. Shortly after that a report dated 18 May 2015 was prepared for sentencing purposes by a different clinical forensic psychologist, Mr John Bell. Mr Bell recorded a detailed account of the appellant’s family, educational, employment, relationship and health (including mental health) histories. The Judge devoted significant attention in his sentencing remarks to an analysis of this report and as to the inferences his Honour was prepared to draw particularly concerning the appellant’s rehabilitation prospects. According to Mr Bell, based on the information reported to him by the appellant, the appellant experienced sexual abuse as a child and as a result found it difficult to trust people including women. The sexual abuse experienced by the appellant was of a very serious nature and occurred when the appellant was between eight and ten years of age. The appellant told Mr Bell that he found it difficult to provide a context of understanding for the offending behaviour. The appellant was not forthcoming in providing detail of the offending behaviour to Mr Bell. He preferred to acknowledge that the victim’s description of the events on the night was essentially correct. The appellant explained to Mr Bell that he was appalled at his behaviour and that he believed that his level of intoxication was a significant disinhibitor leading to a failure to exercise the sort of restraint that he, as an adult, should have exercised. According to Mr Bell, the appellant said that he continued to struggle to understand why he had behaved in a manner contrary to his own belief system. The appellant expressed a keenness to continue attending psychological sessions in order to achieve a greater understanding of his behaviour on the night of the offence. According to the appellant, one of the consequences of his intoxication was that he had not perceived any “red flag” signals from the victim that would have alerted him to discontinue his actions due to her discomfort or her distaste. The Judge rightly pointed out in his remarks that the appellant should not have needed any red flag signals in order to refrain from engaging in such highly inappropriate and sexually provocative texting behaviour, from getting into bed with a 13 year old step-daughter of his best friend, and from engaging in the massaging activity and the unlawful sexual intercourse by way of digital penetration. Mr Bell suggested possible explanations for the appellant’s behaviour on the night and as to what might have caused it. However, his opinions in this respect lacked certainty. The Judge was particularly troubled that both Mr Bell’s report and the other psychological report provided little assistance in understanding why the appellant offended in the way he did. The Judge was troubled by the fact that the appellant had abused alcohol for some years prior to the offending without leading to the appellant crossing boundaries of appropriate behaviour. The Judge was concerned that he had no satisfactory explanation either from the appellant or the psychologist before him as to why the appellant offended.

Decision

Reasons for decision

The Judge did not err in concluding that there was not good reason to suspend the sentence of imprisonment. I would refuse permission to appeal on this ground.Conclusion I would dismiss the appeal.NICHOLSON J:Introduction On 21 September 2015, a single Judge granted the appellant permission to appeal on four grounds against a sentence imposed in the District Court. Whilst permission to appeal on a fifth ground was refused that aspect of the application has been renewed before this Court. The appellant pleaded guilty to the offences of: aggravated making a child amenable to sexual activity,[7] the maximum penalty for which is imprisonment for 12 years; aggravated indecent assault,[8] the maximum penalty for which is imprisonment for ten years; and unlawful sexual intercourse with a person under 14 years,[9] the maximum penalty for which is imprisonment for life. The first two offences were pleaded to in their aggravated form on the basis that the appellant committed each offence knowing that the victim of the offence was, at the time, under the age of 14 years. As a consequence of the timing of the pleas the appellant became entitled pursuant to section 10C of the Criminal Law (Sentencing) Act 1988 (SA) to a discount with respect to any prison term imposed of up to 20 per cent. [7] Contrary to section 63B(3)(b) of the Criminal Law Consolidation Act 1935 (SA).[8] Contrary to section 56 of the Criminal Law Consolidation Act 1935 (SA).[9] Contrary to section 49(1) of the Criminal Law Consolidation Act 1935 (SA). The Judge exercised the discretion available under section 18A of the Sentencing Act to impose the one penalty for all three offences. His Honour started with a term of imprisonment for six years which he reduced to four years and nine months (20.8 per cent) to reflect the guilty pleas.[10] His Honour fixed a non-parole period of two years and six months. The Judge then allowed the appellant credit of six days for time spent in custody following his arrest. This resulted in final head sentence for imprisonment of four years, eight months and 24 days with a non-parole period of two years, five months and 24 days, both to commence on the day of sentencing, 21 July 2015. [10] Whilst there is no ground of appeal to this effect and the issue was not considered during argument, it remains my view that where the circumstances of a plea invoke a maximum percentage discount available in accordance with section 10C of the Sentencing Act, exceeding that maximum, even by a relatively immaterial amount, is not permitted, see R v Deng [2015] SASCFC 176 at [47], [51]-[53]. The appellant’s five grounds of appeal are as follows. 1.The Learned Sentencing Judge erred in finding there was no explanation provided on behalf of the applicant for his offending, and in so finding placed insufficient weight on the forensic psychological opinion that the applicant was a low risk of re-offending and had good prospects of rehabilitation.2.The Learned Sentencing Judge erred in not taking into consideration the evidence that an immediate custodial sentence would adversely interfere with the applicant’s treatment and rehabilitation. 3.The Learned Sentencing Judge erred in finding that the applicant did not fully appreciate the impact the offending had on the complainant and in so doing placed insufficient weight on the applicant’s remorse and insight into his offending.4.The head sentence and non-parole period are manifestly excessive having regard to the isolated nature of the offending and absence of a course of conduct combined with the applicant’s lack of antecedents, previous good character, good prospects of rehabilitation and low risk of re-offending.5.The Learned Sentencing Judge erred in declining to suspend the sentence for the reasons set out above in [4]. (Permission still required)

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.