R v M, G

Case [2016] SASCFC 116

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v M, G

[2016] SASCFC 116

Judgment of The Court of Criminal Appeal

(The Honourable Justice Blue, The Honourable Justice Nicholson and The Honourable Justice Hinton)

4 October 2016

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

Appeal against sentence.

The appellant pleaded guilty more than 12 weeks after arraignment to one count of aggravated indecent assault and one count of procuring an act of gross indecency. He was sentenced by a Judge of the District Court to imprisonment for three years, seven months and one week (reduced from a starting point of four years on account of his pleas), with a non-parole period of 18 months.

The appellant appealed against the sentence on the grounds that the head sentence and non-parole period were manifestly excessive and the Judge erred in not suspending the sentence of imprisonment.

On the appeal, the respondent conceded that the Judge erred in identifying the maximum penalty for procuring an act of gross indecency as being imprisonment for 10 years, when in fact for a first offence it was three years. The respondent conceded that the appeal should be allowed and the appellant should be resentenced.

Held per Nicholson J (Blue and Hinton JJ agreeing) allowing the appeal:

1.       The sentence imposed by the District Court is set aside.

2.       The appellant is sentenced to a single penalty of imprisonment for two years with a non-parole period of nine months.

3.       The intervention order made by the District Court is revoked and in its place is substituted an intervention order in identical terms.

Held per Hinton J (Blue J agreeing):

1.       Good reason to suspend the sentence of imprisonment does not exist.

Held per Nicholson J:

1.       The term of imprisonment should be suspended upon the appellant entering into a bond to be of good behaviour for two years. The terms of the bond should include that the appellant be subject to supervision by an assigned Community Corrections Officer for two years and that the appellant undertake such counselling and courses directed at rehabilitation of child sex offenders as his assigned Community Corrections Officer requires.

Criminal Law Consolidation Act 1935 (SA) ss 56, 58(1) ; Criminal Law (Sentencing) Act 1988 (SA) ss 7, 7A, 10(1), 10(2)(c), 18A, 19A, 38(1); Crimes Act 1914 (Cth) s 16A(2); District Court Criminal Rules 2014  (SA) r 57(2), (3); District Court Criminal Supplementary Rules 2014  (SA) r 37; District Court Criminal Rules 2014  (SA) r 53(2); Criminal Procedure Act 2009 (Vic) ss 207-209; Criminal Procedure Act 1689  (NSW) ss 52,53; Intervention Orders (Prevention of Abuse) Act 2009 (SA), referred to.
R v D (1997) 69 SASR…

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R v M, G [2016] SASCFC 116
Case
[2016] SASCFC 116
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CaseChat Overview and Summary

The case of R v M, G involved an appeal against a sentence imposed in the District Court. The appellant, GM, had pleaded guilty to aggravated indecent assault and procuring an act of gross indecency. The appeal was heard by Blue, Nicholson, and Hinton JJ.

The primary legal issues before the court were whether the sentencing judge had erred in principle, particularly in misapprehending the maximum penalty for one of the offences, and whether the sentence imposed was manifestly excessive or inadequate. The court also considered the impact of exceptional circumstances, such as hardship to the appellant's family, and the effect of the appellant having been granted bail pending the appeal.

The court acknowledged that the sentencing judge had misidentified the maximum penalty for procuring an act of gross indecency. While noting that a misapprehension of maximum penalties can be material to the exercise of sentencing discretion, the court found that in this instance, the error did not necessitate a complete reopening of the sentencing discretion. The court also considered the significant hardship that imprisonment would cause to the appellant's wife and wider family, deeming these exceptional circumstances that should be taken into account. However, the court rejected the submission that the appellant's release on bail pending appeal constituted an additional hardship relevant to sentencing, stating that the granting of bail should not influence the sentence itself.

Ultimately, the court allowed the appeal, set aside the original sentence, and resentenced the appellant to imprisonment for two years with a non-parole period of nine months, without suspending the sentence.

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

NICHOLSON J HINTON J
In the circumstances, without endorsing the conduct of the special directions hearing Judge in offering the very cautious and limited sentencing indication that was given, the history of the matter in the District Court does not justify reducing the head sentence or non-parole period that is otherwise appropriate, nor does it give rise to good reason, in itself or in conjunction with all other relevant circumstances, to suspend the sentence of imprisonment to be imposed on the appellant.Conclusion I would allow the appeal. I would set aside the sentence imposed by the Judge. I would resentence the appellant pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to imprisonment for two years. I would fix a non-parole period of nine months. I would not suspend the sentence of imprisonment. Introduction GM pleaded guilty to the offences of aggravated indecent assault[9] and procuring an act of gross indecency.[10] He has appealed against a sentence imposed in the District Court of imprisonment for three years, seven months and one week with a non-parole period of 18 months.[11] [9] Contrary to section 56 of the Criminal Law Consolidation Act 1935.[10] Contrary to section 58(1)(b) of the Criminal Law Consolidation Act 1935.[11] The Judge started at four years but allowed approximately ten per cent discount for the plea of guilty which was entered more than 12 weeks after arraignment. There is no challenge to the percentage discount given. The offence of indecent assault was committed in its aggravated form because the victim was under the age of 14 years.[12] The victim, S, is the daughter of the appellant’s stepson and was aged five at the time of the offending.[12] Section 56(2) of the Criminal Law Consolidation Act 1935. The maximum penalty for an aggravated indecent assault is ten years imprisonment and the maximum penalty for procuring an act of gross indecency (where a first such offence) is imprisonment for three years. Unfortunately, the Judge identified in his sentencing remarks the maximum penalty for the offence of procuring an act of gross indecency as being imprisonment for ten years. The maximum penalty available for a particular offence is an important consideration when sentencing for that offence.[13] There is some disagreement in the authorities as to whether a misapprehension of the maximum penalty should, of itself, lead to the conclusion that the exercise of the sentencing discretion necessarily miscarried such that the appeal should be allowed and the appellant resentenced or whether such a misapprehension will not operate to reopen the sentencing discretion unless the appellate court is satisfied that it was material.[14] [13] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ) “[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and a case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all other relevant factors, a yardstick."[14] Some of the authorities are collected and discussed by Sulan J (with whose reasons Kourakis J (as his Honour then was) and Stanley J agreed) in R v Carbone [2012] SASCFC 34 at [46]-[53].

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J, HINTON J

I am not satisfied that imprisonment of the appellant, unless for a lengthy period, is likely to result in a forced sale of the family home. I am satisfied that, over the short to medium term, available community assistance together with some assistance from and shared between the other children would permit the appellant’s wife to remain alone in the family home. Nevertheless, I am satisfied that the hardship that would be caused to the appellant’s wife and the wider family members in the event that the appellant were to be imprisoned still would be of such significance as to amount to exceptional circumstances and, as such, should be taken into account in the appellant’s favour. In addition, I am satisfied that the hardship caused to the appellant’s wife and the wider family as a result of the appellant being unable to care for his wife would make the experience of imprisonment more burdensome for the appellant in the sense envisaged by the Victorian Court of Appeal in Markovic.[25][25] Markovic v The Queen; Pantelic v The Queen (2010) 30 VR 589 at [20].Two further considerations The appellant was sentenced and taken into custody on Wednesday 29 June 2016 at 9.40am. He was granted bail pending the appeal on the morning of Friday 8 July 2016 after spending, on my calculations, nine days in custody. Counsel submitted that, having been released on bail, it would be an additional hardship relevant to sentence for the appellant to be returned to custody. I reject this submission. Counsel for the Director at the permission hearing indicated that the appeal would be conceded such that the appellant would be entitled to be sentenced afresh. In this context, counsel volunteered that there was no reason why the appellant should not be restored to the position he had been in immediately prior to sentencing and that bail would be appropriate. Counsel for the appellant did not wish to add anything and, by implication, must have adopted the position put by counsel for the Director. The appellant voluntarily entered into the bail agreement. It is true that the appellant entered custody and then was released on bail in order to go through the sentencing process and all the stress entailed for a second time as a result of an error for which he is in no way responsible. However, that error has provided him with a second opportunity to press his case for a more lenient sentence. Furthermore, he accepted the offer of bail in the full knowledge that he was to be placed in the same position – no better and no worse – that he had been in prior to sentencing in the District Court. He was aware that a custodial penalty was still a live issue. In addition, whilst each case will be determined on its own facts, one should be cautious before giving any or any significant weight to such a matter. The granting of bail pending appeal, of itself,[26] ought not be allowed to influence the sentence later ordered. To allow otherwise would risk an irrelevant factor being allowed to influence the discretionary decision whether or not to grant the bail.[26] As opposed to the underlying considerations relevant to the exercise of the discretion.