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R v M, REM

R v M, REM

Case [2008] SASC 348 11 December 2008

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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.

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

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, REM

Details

AGLC: R v M, REM [2008] SASC 348
Case: [2008] SASC 348
Decision Date: 11 December 2008

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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Citations

AGLC Citation

R v M, REM [2008] SASC 348

Most Recent Citation

R v Tran [2009] SASC 341

Cases citing this decision · 5 of 5 shown

R v Mountford
[2019] SASC 16 Para 2

…District Court Judge’s sentencing remarks dated 24 October 2008 and the sentence appeal judgment of the Court of Criminal Appeal.[6] [6] R v M, REM [2008] SASC 348.…
R v PAULY
[2011] SASCFC 113 Para 5

…Elliott [2001] SASC 101 at [21]-[26], (2001) 121 A Crim R 254 at 257; R v Califano [2002] SASC 320 at [29]-[30], (2002) 222 LSJS 460 at 463-4; R v M [2008] SASC 348 at [41]; R v Holmes [2009] NTCCA 16 at [34]. [7] Ibid. [8] Criminal Law Consolidation Act 1935 (SA) s 340. Background Circumstances…
Overland Corner Station Pty Ltd & Anor v Gould
[2010] SASC 61 Para 4

…was a sentencing error. [24] Ibid. [25] [1999] SASC 217 at [22]. [26] R v B, RWK [2005] SASC 84 at [24]; (2005) 91 SASR 200 at 205; R v M, REM [2008] SASC 348 at [32]; R v Tran [2009] SASC 341 at [43]; R v Cramp [2010] SASC 51 at [56].…
R v Cramp
[2010] SASC 51 Para 1

…should result in an appropriate sentence.[24] (emphasis in original) [24] R v B, RWK (2005) 91 SASR 200 at 205 [24]. See also R v M, REM [2008] SASC 348 at [32] per White J, with whom Anderson and Kelly JJ agreed; R v Tran [2009] SASC 341at [43] per Anderson J, with whom Bleby and White JJ agreed; but compare R v…
R v Tran
[2009] SASC 341 Para 9

…White J, with whom Anderson and Kelly JJ agreed, in R v M, REM [2008] SASC 348 at [32] applied the reasoning in R v B and said: [32]… The totality principle has no part to play when a judge imposes a single sentence under s 18A, which single sentence is derived without the attribution of a notional sentence for ea…

View all 5 citing cases →

Cases cited in this decision · 11 of 11 shown

R v Van der Horst
[2006] SASC 243 Para 31

…LLK [2003] SASC 431 at [14]; (2003) 231 LSJS 458 of 460; R v Waugh [2005] SASC 470 at [42]-[44]; (2005) 93 SASR 274 at 284; R v Van Der Horst [2006] SASC 243 at [81]-[87].…
R v Waugh
[2005] SASC 470 Para 31

…70 SASR 488 by the Chief Justice at 490, and by Olsson J at 497. [10] R v LLK [2003] SASC 431 at [14]; (2003) 231 LSJS 458 of 460; R v Waugh [2005] SASC 470 at [42]-[44]; (2005) 93 SASR 274 at 284; R v Van Der Horst [2006] SASC 243 at [81]-[87].…
R v Osenkowski
[2005] SASC 142 Para 9

…is too low, without granting permission to appeal.[17] [15] Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299-300. [16] R v Osenkowski (1982) 30 SASR 212 at 213; R v Shepperbottom [2001] SASC 31 at [4]; (2001) 212 LSJS 486 at 486. [17] Everett v The Queen (1994) 181 CLR 295; R v Califano [2002] SASC 320; (…
R v B, RWK
[2005] SASC 84 Para 1

…not “totted up to make a total”, the “synthesis” of factors should result in an appropriate sentence.[14] [Emphasis in original]. [13] [2005] SASC 84; (2005) 91 SASR 200. [14] Ibid at [24], 204-5.…
R v Bennett
[2005] SASC 55 Para 32

…of imprisonment that is appropriate. No further reduction under the totality principles should usually be called for.[12] [Citations omitted]. [11] [2005] SASC 55. [12] Ibid at [15]-[16].…
R v LLK
[2003] SASC 431 Para 30

…rticular application when a judge sentencing for multiple offending has adopted the approach of accumulating a number of individual sentences.[8] [6] [2003] SASC 431; (2003) 231 LSJS 458. [7] Ibid at [16], 460. See also R v Place [2002] SASC 101 at [90], [98]; (2002) 81 SASR 395 at 426-7, 428‑9. [8] Postiglione v…
R v Califano
[2002] SASC 320 Para 9

…0 SASR 212 at 213; R v Shepperbottom [2001] SASC 31 at [4]; (2001) 212 LSJS 486 at 486. [17] Everett v The Queen (1994) 181 CLR 295; R v Califano [2002] SASC 320; (2002) 222 LSJS 460.…
R v Place
[2002] SASC 101 Para 30

…the approach of accumulating a number of individual sentences.[8] [6] [2003] SASC 431; (2003) 231 LSJS 458. [7] Ibid at [16], 460. See also R v Place [2002] SASC 101 at [90], [98]; (2002) 81 SASR 395 at 426-7, 428‑9. [8] Postiglione v The Queen (1997) 189 CLR 295 at 307-8.…
R v Shepperbottom
[2001] SASC 31

…t 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…
Postiglione v the Queen
[1997] HCA 26 Para 30

…LSJS 458. [7] Ibid at [16], 460. See also R v Place [2002] SASC 101 at [90], [98]; (2002) 81 SASR 395 at 426-7, 428‑9. [8] Postiglione v The Queen (1997) 189 CLR 295 at 307-8.…
Everett v the Queen
[1994] HCA 49 Para 4

…hould be granted to the Crown so that this Court can maintain adequate standards of punishment for offences of this kind. [3] Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299-300 ; Shepperbottom v The Queen [2001] SASC 31; (2001) 212 LSJS 486.…

Legislation cited in this decision · 3

Criminal Law (Sentencing) Act 1988 (SA)
10, 10(4), 18A 4 mentions (from Para 3)
Criminal Law Consolidation Act 1935 (SA)
49(1), 5, 56 4 mentions (from Para 2)
Criminal Law Consolidation Act Amendment Act 1985 (SA)
3 1 mention (from Para 7)