Legal Research
Cases
R v Lomas & Symmons

R v Lomas & Symmons

Case [2005] SASC 435 23 November 2005

Type to search within this case.

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LOMAS & SYMMONS
Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Besanko and The Honourable Justice Vanstone)
23 November 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Crown appeal against sentence - two co-offenders - offences of unlawful sexual intercourse with person under 17 years - each offender released on bond without conviction - whether sentences manifestly inadequate - discussion of sentencing considerations - held, sentences merciful but not inadequate - application for leave refused.
Criminal Law Consolidation Act 1935 s 49(3); Criminal Law (Sentencing) Act 1988 s 39, referred to.
Dinsdale v The Queen (2000) 202 CLR 321; Everett v The Queen (1994) 181 CLR 295; R v Angus [2004] SASC 317; R v D (1997) 69 SASR 413; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212, considered.

R v LOMAS & SYMMONS
[2005] SASC 435
Court of Criminal Appeal: Debelle, Besanko and Vanstone JJ

DEBELLE J. The Director of Public Prosecutions applies for leave to appeal against the penalties imposed by a Judge of the District Court.
The respondents pleaded guilty in the District Court to the crime of unlawful sexual intercourse with a girl under the age of 17 years contrary to s 49(3) of the Criminal Law Consolidation Act 1935. The offending of both respondents concerned the same girl who was then aged 15 years and 10 months.
The offending of each respondent differed. In the case of the respondent Lomas, the offending consisted of causing the girl to perform the act of fellatio upon him. In the case of the respondent Symmons, the offending consisted of two counts, one of digital penetration of the girl’s vagina and the other of penile vaginal intercourse.
The judge was satisfied that there was good reason to exercise the power in s 39 of the Criminal Law (Sentencing) Act 1988 not to record a conviction and to give each respondent a chance to rehabilitate himself. Without recording a conviction, he discharged each respondent on each entering into a separate bond in the sum of $500 to be of good behaviour for a period of 12 months. It was a term of the bond that if each respondent should fail to comply with it, he would be brought back to the court for sentencing. As Symmons had committed two offences, there was a separate bond in respect of each offence.
The offending occurred when both the complainant and the respondents were affected by liquor. The complainant and a girlfriend had been shopping at Glenelg in the afternoon of Monday, 4 October 2004. At about 5.00 pm they decided to go home. They went to the tram stop in Moseley Square which is close to the Ramada Grand Hotel. They began talking to some young men in the…

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 Lomas & Symmons

Details

AGLC: R v Lomas & Symmons [2005] SASC 435
Case: [2005] SASC 435
Decision Date: 23 November 2005

CaseChat Overview and Summary

The case of R v Lomas & Symmons involved two co-offenders who were charged with the offence of unlawful sexual intercourse with a person under 17 years of age. The offenders were released on bond without conviction pending the outcome of their appeal against the sentences imposed. The Crown appealed against the sentences, arguing they were manifestly inadequate. The central legal issue before the court was whether the sentences imposed by the lower court were manifestly inadequate, considering the nature and gravity of the offences.

The court considered various sentencing factors, including the nature of the offence, the culpability of the offenders, and the impact on the victims. The court acknowledged the merciful nature of the sentences but found them not to be manifestly inadequate. The court examined the principles of sentencing, including the need for proportionality and deterrence, and balanced these against the offenders' backgrounds and the potential for rehabilitation. Ultimately, the court upheld the sentences, concluding that while merciful, they were not inadequate given the circumstances.

The reasoning of the court was grounded in a comprehensive analysis of the sentencing principles and the specific facts of the case. The court emphasised the importance of proportionality and the need to ensure sentences reflect the seriousness of the offence. The court also considered the potential for the offenders to reoffend and the broader implications for community safety and deterrence. The application for leave to appeal was refused, affirming the lower court's decision on the sentences.

No specific final orders were mentioned in the text, but the court's decision effectively upheld the sentences imposed by the lower court. The court's refusal to grant leave to appeal indicates a finality in the sentencing matter.

Orders