R v M, REM

Case [2008] SASC 348


SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v M, REM

[2008] SASC 348

Judgment of The Court of Criminal Appeal

(The Honourable Justice Anderson, The Honourable Justice White and The Honourable Justice Kelly)

11 December 2008

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Prosecution appeal against sentence – respondent pleaded guilty to 13 counts of indecent assault and two counts of unlawful sexual intercourse – offending occurred over a period of 30 years as part of several courses of conduct – victims were respondent’s daughter, three stepsons and three sons of a family friend – victims aged from seven to 13 at times of offending – respondent sentenced to seven years imprisonment with a non-parole period of four years.

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE

Whether sentencing Judge erred by applying the totality principle before taking account of other matters relevant to sentence.

Held: no error shown – Judge did not apply totality principle – totality principle inapplicable when a single sentence is imposed under Criminal Law (Sentencing) Act 1988 s 18A without attributing a notional sentence for each offence.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE

Whether sentence manifestly inadequate – consideration of factors relevant to sentence – whether permission to appeal should be granted.

Held: Appeal allowed – sentence manifestly inadequate – offending involved seven victims and caused profound harm to each – permission to appeal granted in order to maintain proper standard of sentencing for multiple offences of sexual abuse involving numerous victims – respondent re-sentenced to nine years imprisonment, with a non-parole period of six years.

Criminal Law Consolidation Act 1935 (SA) s 5, s 49, s 56; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A; Criminal Law Consolidation Act Amendment Act 1985 (SA) s 3, referred to.
Everett v The Queen (1994) 181 CLR 295; Shepperbottom v The Queen (2001) 212 LSJS 486; R v Bennett [2005] SASC 55; R v B, RWK (2005) 91 SASR 200; R v Osenkowski (1982) 30 SASR 212, applied.
R v LLK (2003) 231 LSJS 458, discussed.
R v Place (2002) 81 SASR 395; Postiglione v The Queen (1997) 189 CLR 295; R v Major (1988) 70 SASR 488; R v Waugh (2005) 93 SASR 274; R v Van Der Horst [2006] SASC 243; R v Califano (2002) 222 LSJS 460, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"totality", "manifestly inadequate"

R v M, REM
[2008] SASC 348

Court of Criminal Appeal:       Anderson, White & Kelly JJ

ANDERSON J.

  1. I would grant permission to the Director to appeal against sentence. I would allow the appeal and substitute a sentence of imprisonment of 9 years with a non-parole period of 6 years. I agree with the orders proposed by White J and with his reasons.

    WHITE J.

  2. The Director of Public Prosecutions seeks permission to appeal against a sentence imposed in the District Court for…

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R v M, REM [2008] SASC 348
Case
[2008] SASC 348
Decision Date

CaseChat Overview and Summary

The matter under review is an appeal against sentence in the case of R v M, REM, heard in the court of appeal. The respondent had pleaded guilty to thirteen counts of indecent assault and two counts of unlawful sexual intercourse, offences that spanned over a period of thirty years, involving multiple victims who were the respondent’s daughter, three stepsons, and three sons of a family friend. The victims were aged between seven and thirteen at the times of the offending. The respondent was originally sentenced to seven years in imprisonment with a non-parole period of four years.

The central legal issues for the court to address were whether the sentence imposed by the trial judge was appropriate in light of the severity and nature of the offences, and whether the sentence adequately reflected the harm caused to the multiple victims over an extended period. The prosecution argued that the sentence was unduly lenient and failed to appropriately reflect the cumulative impact of the respondent's prolonged offending behaviour.

In considering these issues, the court held that the sentence imposed by the trial judge did not adequately reflect the severity of the crimes and the number of victims involved. The court found that the sentence did not sufficiently uphold a proper standard of sentencing for multiple offences of sexual abuse involving numerous victims. Consequently, the appeal was allowed, and the original sentence was set aside. The court substituted a sentence of imprisonment for nine years, with a non-parole period of six years, which was deemed more reflective of the nature and extent of the respondent’s offending. The new sentence was to commence from the date the respondent was remanded in custody.

In conclusion, the court granted permission to appeal, allowed the appeal, set aside the original sentence, and imposed a new sentence of imprisonment for nine years with a non-parole period of six years, effective from the date of remand. The decision underscores the importance of maintaining a proper standard of sentencing in cases of multiple sexual offences involving numerous victims over an extended period.

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

ANDERSON J
I recognise the force of the submissions in this respect made by Mr Mead. The authorities to which he has referred reflect sound principle. However, in my opinion, it is appropriate to grant permission to appeal, and to allow the appeal, in this case. It is necessary to do so in order that a proper standard of sentencing for multiple offences of sexual abuse involving numerous victims is maintained. As I have said, it is that particular feature which, in my opinion, is not reflected in the sentence imposed by the Judge.Conclusion For the reasons given above, I would grant permission to the Director to appeal against the sentence in this case. I would allow the appeal and set aside the sentence imposed in the District Court. I would substitute, under s 18A of the CLSA, a sentence of imprisonment for nine years and I would fix a non-parole period of six years. I would direct that both the sentence and the non-parole period should be taken to have commenced on 18 September 2008, being the date upon which the respondent was remanded in custody. I agree with the orders proposed by White J and with his reasons.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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