(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.
[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.
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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.