R v LEES - [2004] SASC 390

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LEES
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
7 December 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - TOTALITY
The appellant pleaded guilty to two charges of unlawful sexual intercourse with an eight year old girl and one count of indecent assault of a thirteen year old boy - the sentencing Judge fixed individual sentences and then determined that they should be served cumulatively - total imprisonment period of seven years and two months imposed for both offences - non-parole period fixed at four years - appellant appeals against sentence on grounds that: the sentence is manifestly excesssive, offences were singular instances as opposed to a course of conduct, principle of totality incorrectly applied - held: sentencing judge did not err in application of totality principle, appropriate discounts given for pleas, sentence not manifestly excessive - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA), referred to.
R v D (1997) 69 SASR 413, applied.

R v LEES
[2004] SASC 390
Court of Criminal Appeal: Duggan, Bleby and Anderson JJ

DUGGAN J I agree with the reasons prepared by Anderson J.
BLEBY J I agree with the reasons of Anderson J for dismissing this appeal.
ANDERSON J In this matter the appellant had appealed against a sentence of imprisonment imposed by a District Court Judge on 15 June 2004. This court on 21^st October dismissed the appeal and I now publish my reasons.
The appellant pleaded guilty to two counts of unlawful sexual intercourse with an eight year old girl contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). The offences involved two separate incidents occurring within a few minutes of each other, in which he digitally penetrated her vagina.
He also pleaded guilty contrary to s 56 of the Act to indecently assaulting the girl’s thirteen year old brother by fondling the thirteen year old’s penis when he was asleep whilst masturbating himself at the same time. The maximum penalties for these offences are, respectively, life imprisonment and eight years imprisonment.
The appellant was in the position of guardian of the children at the relevant times. He was thirty-one years old at the time of the offences. He had previously been in a relationship with the children’s mother, and because of the trust placed in the appellant by her and the children, they were sleeping over at his house. The incidents of sexual intercourse with the girl and the indecent assault of the boy occurred at different times.
The offending has had a drastic effect on the lives of both of the children as illustrated by their victim impact…

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 LEES

Details

AGLC: R v LEES [2004] SASC 390
Case: [2004] SASC 390
Decision Date: 7 December 2004

CaseChat Overview and Summary

The appellant in this case pleaded guilty to two charges of unlawful sexual intercourse with an eight-year-old girl and one count of indecent assault of a thirteen-year-old boy. The sentencing judge imposed individual sentences for each offence and determined that they should be served cumulatively, resulting in a total imprisonment period of seven years and two months, with a non-parole period fixed at four years. The appellant appealed against the sentence, arguing that it was manifestly excessive, that the offences were singular instances rather than part of a course of conduct, and that the principle of totality had been incorrectly applied.

The court was required to decide whether the sentencing judge had erred in applying the principle of totality, whether appropriate discounts had been given for the pleas of guilty, and whether the sentence was manifestly excessive. The court examined the nature of the offences, the impact on the victims, and the principles of sentencing relevant to the totality principle. The court also considered the appellant’s arguments regarding the application of the principle of totality and whether the sentence was disproportionate to the offences committed.

The court found that the sentencing judge had not erred in applying the principle of totality, as the sentences imposed reflected the seriousness of the offences and the need for deterrence and denunciation. The court noted that appropriate discounts had been given for the pleas of guilty, and that the sentence, while severe, was not manifestly excessive given the nature and impact of the offences. The court dismissed the appeal, holding that the sentence was proportionate and that the totality principle had been correctly applied. The sentence imposed by the sentencing judge was affirmed as appropriate and just in the circumstances.

No further orders were made by the court. The appeal was dismissed, and the sentence imposed by the sentencing judge was upheld.

Orders