R v LY

[2009] SASC 306

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Permission to Appeal in Private)

R v LY

[2009] SASC 306

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice Kourakis)

2 October 2009

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Application for permission to appeal against sentence – applicant convicted of one count of indecent assault – applicant sentenced to term of imprisonment of two years and five months with non-parole period of 12 months – whether sentence of manifestly excessive – whether Judge erred in failing to suspend sentence.

Held: Permission to appeal refused – not reasonably arguable that the sentence imposed was manifestly excessive or that good reason existed to suspend the sentence of imprisonment.

R v LY
[2009] SASC 306

Court of Criminal Appeal:       Duggan, Sulan and Kourakis JJ

1. DUGGAN J:         This is an application for permission to appeal in private.

2. The applicant was sentenced to imprisonment for two years and five months on an admitted charge of committing an aggravated indecent assault on a girl aged 13.  The non-parole period was fixed at imprisonment for 12 months.  The sentencing Judge refused to suspend the sentence.

3. The application for permission to appeal was heard in the first instance by White J.  Permission to appeal was refused.  The applicant has now applied to the Full Court for permission to appeal but requested that the application be heard in private. 

4. The proposed grounds of appeal are that the sentence was manifestly excessive and that the sentencing Judge erred in not suspending the sentence of imprisonment.

5. A specific complaint raised under the first ground is that the sentencing Judge made insufficient allowance for the applicant’s plea of guilty.  The Judge began a consideration of the length of the head sentence with a starting point of imprisonment for three years and reduced this to two years and six months by reason of the plea of guilty, a reduction of approximately 20 per cent.

6. In the course of his sentencing remarks the Judge said:

   I also take into account your plea of guilty for which you deserve credit, though, the amount of credit is reduced somewhat by your insistence that you believed NL was over 17.

   Earlier in his reasons the Judge said:

   At the time you were aware that it was against the law to engage in sexual activity with a person under the age of 17 years. You say that you believed that NL was in fact 17 or over. I conducted a disputed facts hearing in relation to this issue. The prosecution tendered a photograph of NL taken at about the time of these events and a videotape of when she was interviewed by police. I was not impressed by your evidence. It is clear from the photograph in particular that NL was well under the age of 17 years. She appears, at most, to be about 14-15 years of age at the time. I am satisfied beyond reasonable doubt that you believed she was about that age.

7. The extent of the reduction for a plea of guilty is very much a matter for the sentencing Judge’s discretion.  In this case the applicant denied having anything to do with the complainant when questioned by the police.  He was originally charged with two offences of indecent assault (presumably as part of the one series of incidents) but the prosecution withdrew one of the charges and the applicant pleaded guilty to the remaining charge.

8. The sentencing Judge rejected the applicant’s claim that he thought the complainant was 17 years of age.  He was required to take into account the extent of remorse and contrition when deciding the extent of the reduction for the plea of guilty.  The matters to which I have referred were relevant to this consideration.  In my view, adequate allowance was made for the plea of guilty. 

9. The facts relevant to the applicant’s offending are set out in the sentencing Judge’s remarks and White J’s reasons for refusing permission to appeal.

10. The applicant was 25 years of age at the time of the offending and the complainant was 13 years and 5 months. 

11. The applicant took the complainant to his home and the circumstances in which he did so add considerably to the seriousness of the offence. 

12. According to the agreed facts the applicant and the complainant met briefly on an occasion approximately four months prior to the offending.  On the occasion of the offending he asked the complainant to get into his car.  Initially she refused but she then agreed.  The applicant gave the complainant an alcoholic drink.  While they were still in the car he climbed on top of her and simulated sexual intercourse.  They were both fully clothed.  They had met at 5.00pm and at 8.30pm the complainant asked to go home.  The applicant said he would take her but he drove in the wrong direction and took her to his house in Parafield Gardens.  He said he would take her home the following morning but she asked him to take her home immediately.  He then told her that his car was broken.

13. The applicant took the complainant to his bedroom and engaged in an act of simulated sexual intercourse with her.  He touched her breast and she protested.  Eventually he placed her hand on his penis and persisted when she pulled her hand away on a number of occasions.  He ejaculated onto her hand.  He attempted to pull her pants down but she prevented him.  In the afternoon of the following day he drove her to a car park near her home.

14. In the light of the girl’s age, her unwillingness to go home with the applicant which she communicated to him, the incident at his home and the fact that she was not taken to her home until the following morning, I do not think it can be reasonably argued that the sentence of imprisonment was manifestly excessive.  It should also be noted that the non-parole period was less than half the head sentence.

15. The personal circumstances of the applicant required close attention when considering the discretion to suspend the sentence.  In particular, the applicant had no previous convictions.  The sentencing Judge acknowledged the importance of the applicant’s background and personal circumstances in this respect.  However, he concluded that the seriousness of the offence rendered it inappropriate to suspend the sentence.  In my view it cannot be reasonably argued that he erred in the exercise of his discretion.

16. I would refuse permission to appeal.

17. SULAN J:             I agree with the observations of Duggan J and with the reasons of White J.

18. I would refuse permission to appeal.

19. KOURAKIS J:     I too would refuse permission to appeal for the reasons given by Duggan J.