R v Lian

Case [2023] SASCA 122


SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

R v LIAN

[2023] SASCA 122

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice Doyle)

10 November 2023

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

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

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

Crown appeal against sentence.

The respondent pleaded guilty to one count of maintaining an unlawful sexual relationship with a child.  From a starting point of 14 months, the sentencing Judge imposed a term of imprisonment of one year and 18 days with a non-parole period of five months.

The Director of Public Prosecutions (SA) sought permission to appeal on the following grounds:

1.The Judge erred in reducing the sentence which would have otherwise been appropriate because of the risk that the respondent would be targeted by homosexual paedophiles.

2.Further or in the alternative to ground 1, the Judge erred in taking into account the opinion of Mr Balfour subject of ground 1 where that aspect of his evidence went beyond the bounds of his expertise.

3.The Judge erred in taking into account the risk of the respondent’s deportation in circumstances where the manifestation of that risk was dependent on the future exercise of a Ministerial discretion.

4.The Judge erred in finding that in the circumstances of this case imprisonment would impair the prospects of Mr Lian’s rehabilitation.

5.The sentence imposed was manifestly inadequate.

Held per Kourakis CJ (Lovell and Doyle JJA agreeing), granting permission to appeal and allowing the appeal:

1.The appellant has established the errors complained of in grounds 1, 2, 4 and 5.

2.The third ground is not made out.

3.The sentence is manifestly inadequate.

4.The sentence imposed in the District Court is set aside and the respondent is resentenced to five years and six months imprisonment reduced on account of his guilty plea to five years, with a non-parole period of two years and six months.

Criminal Law (Sentencing) Act 1988 (SA); Migration Act 1958 (Cth) ss 195A, 501(3A); Sentencing Act 2017 (SA) ss 12, 71, 96, 68; Criminal Procedure Act 1921 (SA) s 157, referred to.
Barry v Western Australia [2012] WASCA 175; Clinton v R [2009] NSWCCA 276; Arnold v Samuels (1972) 3 SASR 585; Geddes v The Queen [2012] NSWCCA 94; R v McGaffin (2010) 206 A Crim R 188; AB v The Queen (1999) 198 CLR 111; Milenkovski v Western Australia (2014) 238 A Crim R 535; R v Davies (1978) 68 Cr App R 319; House v The King (1936) 55 CLR 499; New South Wales v Bujdoso (2005) 227 CLR 1;

Continue reading R v Lian

Sign in free to access the full text

Details
AGLC
R v Lian [2023] SASCA 122
Case
[2023] SASCA 122
Decision Date

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on the respondent, Lian, who had pleaded guilty to maintaining a sexual relationship with a child and persistent sexual abuse of a child. The appeal concerned the principles applicable to Crown appeals against sentence, specifically where the sentence is alleged to be manifestly inadequate.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge had erred in imposing a sentence that was so inadequate as to demonstrate an error of principle. The Court was required to consider the threshold for appellate interference in Crown appeals against sentence and the appropriate approach to sentencing for the offences of which the respondent had been convicted.

The Court affirmed that for a Crown appeal against sentence to succeed, the sentence must be demonstrably wrong, meaning it must be so inadequate as to be outside the range of a reasonable sentence. The Court reviewed the sentencing principles relevant to child sexual abuse offences, emphasising the gravity of such offences and the need for sentences that reflect community condemnation and deter future offending. In this instance, the Court found that the sentencing judge had failed to give sufficient weight to the seriousness of the offences and the vulnerability of the victim, leading to a sentence that was manifestly inadequate.

The Court allowed the Crown's appeal and resentenced the respondent to a term of imprisonment that reflected the gravity of the offending.

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

Full text does not contain this section.