R v M, H

Case [2007] SASC 41

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v M, H

[2007] SASC 41

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice White)

19 February 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE

Application by the Director of Public Prosecutions for leave to appeal against sentence - respondent found guilty by jury of three counts of indecent assault - victim was respondent's step-daughter - respondent sentenced to six years’ imprisonment with non-parole period of three years - sentence suspended upon respondent entering into three year good behaviour bond - whether sentencing Judge erred in suspending the sentence - whether sentence was manifestly inadequate - Held: Judge did not err in suspending sentence – sentence not manifestly inadequate – leave to appeal refused.

Criminal Law (Sentencing) Act 1988 (SA) s 10(4), s 38(1), referred to.
Griffiths v The Queen (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; G v Police (1999) 74 SASR 165; R v Fowler [2006] SASC 18, applied.
Malvoso v The Queen (1989) 168 CLR 227; R v Hicks (1987) 45 SASR 270; Elliot v Harris (No 2) (1976) 13 SASR 516; Ware v Betts (1987) 134 LSJS 212, considered.

R v M, H
[2007] SASC 41

Court of Criminal Appeal:  Duggan, Gray and White JJ

  1. DUGGAN J.         I would refuse leave to appeal against the sentence imposed on the respondent.  I agree with the reasons of Gray J.

    GRAY J.

  2. This is a Crown application for leave to appeal against sentence.

    Introduction

    The Trial

  3. The respondent was charged with committing four sexual offences against his step-daughter.  The first count alleged that between 28 October and 10 November 1996, the respondent indecently assaulted the complainant, being a person of the age of 12 years.  The second count alleged that between 15 and 25 December 1996, the respondent indecently assaulted the complainant, being a person of the age of 12 years.  The third count – unlawful sexual intercourse – alleged that between 23 and 31 October 1998, the respondent had sexual intercourse with the complainant, being a person aged 14 years.  The fourth and final count – rape – alleged that between 10 September and 15 October 2002, the respondent had sexual intercourse with the complainant, without her consent, by inserting a finger into her vagina.

  4. On 23 August 2006, the respondent was found guilty in the District Court by jury verdict of the first two counts of indecent assault.  On the third count the respondent was found not guilty of unlawful sexual intercourse, but guilty of the alternative offence of indecent assault.  He was found not guilty of the fourth count of rape.

  5. On 31 August 2006, the respondent…

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R v M, H [2007] SASC 41
Case
[2007] SASC 41
Decision Date

CaseChat Overview and Summary

The case involved an appeal by the Director of Public Prosecutions against the sentence imposed on the respondent, who had been found guilty of three counts of indecent assault on his step-daughter. The sentencing Judge had imposed a sentence of six years' imprisonment, with a non-parole period of three years, but suspended the sentence upon the respondent entering into a three-year good behaviour bond. The Director argued that the decision to suspend the sentence rendered it manifestly inadequate and sought leave to appeal. The court was required to determine whether the sentencing Judge had erred in suspending the sentence and whether the sentence was manifestly inadequate. The court also needed to consider whether the Director had demonstrated that the case was one of the “rare and exceptional” cases in which the Court should interfere with the discretion of the sentencing Judge.

The court considered the arguments presented by the Director and found that the sentencing Judge had not erred in suspending the sentence. The court held that the suspension of the sentence of imprisonment was undoubtedly merciful but was open to the Judge in exercising his discretion in the circumstances of the case. The court noted that the sentencing Judge had considered the relevant factors, including the breach of trust, the exploitation, the impact on the complainant, and the need for deterrence. The court also held that the sentence was not manifestly inadequate and that the Crown had failed to demonstrate that this was one of the “rare and exceptional” cases in which the Court should interfere with the discretion of the sentencing Judge. The court emphasised that an error must be identified before a sentence may be interfered with and that a sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.

The court concluded that the application for leave to appeal should be refused. The sentencing Judge had not erred in suspending the sentence, and the sentence was not manifestly inadequate. The Director had failed to demonstrate that the case was one of the “rare and exceptional” cases in which the Court should interfere with the discretion of the sentencing Judge. The court emphasised that Crown appeals against suspension of sentence should be approached with great care, and the “rare and exceptional” test should be rigorously applied. The court also noted that an error must be identified before a sentence may be interfered with, and that a sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result. The application for leave to appeal was accordingly refused.

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

DUGGAN J
The Crown has failed to demonstrate that this is one of the “rare and exceptional” cases in which this Court should interfere with the discretion of the sentencing Judge. While the suspension of the sentence of imprisonment was undoubtedly merciful, this course was open to the Judge in exercising his discretion in the circumstances of the case. Conclusion I would refuse leave to appeal. WHITE J: In my opinion the application by the Director for leave to appeal against sentence should be refused. I agree with the reasons of Gray J.

Ratio Decidendi

Legal Principle Established

Established by: DUGGAN J

Accordingly, a Crown appeal against suspension of sentence should be approached with great care, and the “rare and exceptional” test should be rigorously applied. Furthermore, an error must be identified before a sentence may be interfered with. As Kirby J explained in Dinsdale:[15] As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.Such error may be inferred from a result that is manifestly unreasonable or plainly wrong. However, a sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.[16] [15] Dinsdale v R (2000) 202 CLR 321 at 339-340 (footnote omitted).[16] Dinsdale v R (2000) 202 CLR 321 at 339-340.Consideration of the Application In this case, the Director submitted that the decision to suspend the appellant’s sentence of imprisonment ultimately rendered the sentence imposed manifestly inadequate. The decision to suspend was made pursuant to section 38(1) of the Sentencing Act, which provides that a sentence of imprisonment may be suspended if the court thinks there is “good reason” for doing so. The Director argued that in deciding whether good reason to suspend exists, the Court must undertake a balancing process, in which both mitigatory and aggravating factors are considered. In the present case, it was argued that the sentencing Judge failed to consider a number of significant factors when deciding to suspend, and in so doing, fell into error in the sentencing process. First, it was submitted that the sentencing Judge gave too little weight to the gross breach of trust that accompanied the offending. Second, it was said that too little weight was given to the element of exploitation surrounding the commission of the offences, and in particular the age difference between the appellant and the complainant. Third, it was contended that insufficient regard was given to the impact of the offending on the complainant. Fourth, it was said that the Judge erred in failing to give paramount consideration to the need for deterrence, as required by section 10(4) of the Sentencing Act.[17] Finally, it was argued that too little regard was had to the fact that the offending was over a period of years, and was not “just a casual slip”. [17] Section 10(4) Criminal Law (Sentencing) Act 1988 (SA) reads: “A primary policy of the criminal law is to protect children from sexual predators by ensuring that, in any sentence for an offence involving sexual exploitation of a child, paramount consideration is given to the need for deterrence.”