R v M, F - [2017] SASCFC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v M, F
[2017] SASCFC 114
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Nicholson and The Honourable Justice Doyle)
7 September 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
Appeal against sentence. The appellant was tried before a jury on eight counts: four counts of indecent assault, three counts of unlawful sexual intercourse with a person under the age of 12 years and one count of unlawful sexual intercourse with a person under the age of 17 years. The charges related to the appellant’s daughter. The complainant also gave evidence at trial of uncharged sexual conduct committed against her by the appellant.
The appellant was found guilty of one count of indecent assault and one count of unlawful sexual intercourse with a person under the age of 17 years. The sentencing Judge imposed a single sentence of seven years imprisonment with a non-parole period of four years and six months.
On appeal, the appellant’s primary contention is that the Judge’s findings as to the nature and extent of the uncharged sexual conduct by the appellant were in error, and accordingly, his Honour erred by sentencing on the basis of a background of penetrative sexual conduct. The appellant also contends that the head sentence and non-parole period are manifestly excessive.
Held per Nicholson J (Kelly and Doyle JJ agreeing), dismissing the appeal:
1. Neither the head sentence nor the non-parole period are manifestly excessive.
2. The starting point of seven years imprisonment was within the range available to the Judge, in the absence of a plea of guilty and given the nature of the two offences, the consequences of the offending and the lack of any demonstrated contrition. While the non-parole period might be seen as towards the upper end of the available range given the appellant’s personal circumstances, it is not manifestly excessive.
3. The findings made by the Judge as to the background of sexual conduct were open to his Honour as a matter of law and fact. The reasoning of Doyle CJ in R v Macbeth [2008] SASC 71 is applicable.
Criminal Law (Sentencing) Act 1988 s 18A; Criminal Law Consolidation Act 1935 s 49, s 56, referred to.
R v D [1997] SASC 6350, (1997) 69 SASR 413; Hili v The Queen [2010] HCA 45, (2010) 242 CLR 520; The Queen v Morse (1979) 23 SASR 98; R v MacBeth [2008] SASC 71, considered.

R v M, F
[2017] SASCFC 114
Court of Criminal Appeal: Kelly, Nicholson and Doyle JJ
KELLY J.

I agree that the appeal should be dismissed for the reasons given by Nicholson J.

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 M, F

Details

AGLC: R v M, F [2017] SASCFC 114
Case: [2017] SASCFC 114
Decision Date: 7 September 2017

CaseChat Overview and Summary

This matter concerned an appeal against sentence brought by the appellant, Mr. M, against the respondent, the Crown. The dispute centred on the factual basis upon which the sentencing judge had imposed the sentence, with the appellant arguing that the judge's findings were inconsistent with the jury's verdicts. The appeal was heard by Kelly, Nicholson, and Doyle JJ.

The primary legal issue before the court was whether the sentencing judge had erred by making factual findings that were inconsistent with the jury's verdicts of guilty on certain counts and not guilty on others. Specifically, the appellant contended that the judge's finding that the offences occurred within the context of an ongoing sexual relationship was not open to him, given the jury's acquittals on other counts, which the appellant argued implied a rejection of the complainant's evidence regarding uncharged acts.

Doyle CJ, with whom Bleby and Gray JJ agreed, rejected the appellant's submission. His Honour explained that a sentencing judge is not precluded from making findings of fact that are not inconsistent with jury verdicts. In this instance, the jury's guilty verdicts on counts 4 and 5 were reasonably open to them, even with acquittals on other counts. The court held that the jury verdicts were consistent with a substantial acceptance of the complainant's evidence regarding uncharged acts, and therefore, it was open to the sentencing judge to find that this evidence was substantially truthful. This allowed the judge to conclude that the appellant had committed the uncharged acts described by the complainant, which in turn meant the appellant was not entitled to be sentenced on the basis that the offences were isolated acts. The court affirmed that the findings made by the judge were open to him as a matter of both law and fact, and were not inconsistent with the jury's verdicts.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J NICHOLSON J

The situation confronting the Judge was not dissimilar to that which arose at trial in R v MacBeth[11] and a similar complaint about the Judge’s approach to sentencing was pressed by the appellant in that case. Doyle CJ (with whose reasons Bleby and Gray JJ agreed) in rejecting the appeal explained as follows.[12][11] [2008] SASC 71.[12] At [100]-[107].Mr Griffin submits that it was not open to the Judge to sentence on the factual basis on which he sentenced Mr MacBeth. He relies on the well established principle that a judge cannot sentence on a basis inconsistent with the verdicts of the jury. Mr Griffin further submits that the Judge’s finding that the offences were committed in the context of an ongoing sexual relationship is inconsistent with the jury verdicts, and accordingly was not open to the Judge. He submits that the not guilty verdicts meant that the Judge should ignore the allegations the subject of those counts. The Judge did so. But he submits further that the jury must have rejected DP’s evidence of uncharged acts, because if they had accepted that evidence they would have convicted Mr MacBeth on the counts on which they acquitted him.I do not accept this submission. My conclusion that the guilty verdicts on count 4 and on count 5 were reasonably open to the jury despite the not guilty verdicts on the other counts rests on the hypothesis that the jury might reasonably and rationally have decided that they should acquit on all but count 4 and count 5. That conclusion rests on the circumstances of the counts on which the jury returned not guilty verdicts. It does not involve a conclusion that the jury did not accept DP’s evidence about the uncharged acts.Acceptance of the verdicts of the jury as a whole does not lead to the conclusion that the jury must have rejected DP’s evidence about the uncharged acts.To the contrary, the jury verdicts are consistent with substantial acceptance of DP’s evidence as to the uncharged acts. It was open to the Judge to make the finding that DP’s evidence about the uncharged acts was substantially truthful, without undermining the jury verdicts and without making a finding inconsistent with those verdicts.In short, it was open to the Judge to make the findings of fact that he made.Mr Griffin further submits that the result of the Judge’s finding is that Mr MacBeth has been found to have committed unspecified acts on unspecified occasions. That is correct. But just as it was open to the jury to have regard to the evidence of the uncharged acts as circumstantial evidence supporting a finding of guilt, so it was open to the Judge to find that the same evidence led to a conclusion that Mr MacBeth had committed the uncharged acts described by DP. The result of this is to deny Mr MacBeth the benefit of a claim to be sentenced on the basis that the offences were isolated unlawful acts. On this point I agree generally with the observations by Mullighan J in R v Liddy (No. 2) [2002] SASC 306; (2002) 84 SASR 231 at [67]–[69].Not only were the findings that the Judge made open to be made as a matter of law, but those findings were also open to be made as a matter of fact. Assuming that the findings are not inconsistent with the jury verdicts, it cannot be said that it was not open to the Judge to reach the conclusion that he reached.The same reasoning applies in this case. The findings made by the Judge were not inconsistent with the jury verdicts and were open to his Honour as a matter of law and fact.Conclusion

Ratio Decidendi

Legal Principle Established

Established by: KELLY J, NICHOLSON J

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