R v M, WJ

Case [2005] SASC 272

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v M, WJ

Judgment of The Court of Criminal Appeal

(The Honourable Justice Debelle, The Honourable Justice Besanko and The Honourable Justice Sulan)

20 July 2005

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Appeal against sentence - appellant convicted by judge alone of unlawful sexual intercourse, indecent assault and attempted sexual intercourse - appellant sentenced to six years imprisonment with a non-parole period of three years and six months - the appellant commenced a relationship with the victim's mother in about 1987 - the offending occurred after 1989 when the family moved house - the offending ended when the appellant first became aware that the victim had awakened and objected to his conduct - in 1991 the victim complained to her mother about the abuse approximately twelve months after the offending desisted however her mother did not act upon the complaint - a complaint to the police did not occur until March 2003 when the relationship between the appellant and the victim's mother ended - whether the sentence was manifestly excessive - whether the sentencing judge failed to take into account the relevant sentencing standards as they applied at the time of the offending - whether the sentencing judge made errors of fact in sentencing the appellant - appeal dismissed.

Criminal Law Consolidation Act 1935 s 49(3), s 56, s 270A; Criminal Law (Sentencing) Act 1988 s 18A, referred to.
Fisher v Hebburn Ltd (1960) 105 CLR 188; Maxwell v Murphy (1957) 96 CLR 261; R v Clifford [2004] SASC 344; R v D (1997) 69 SASR 413; R v Kench [2005] SASC 85; R v Liddy (No 2) (2002) 84 SASR 231; R v Major (1998) 70 SASR 488; R v MJR (2002) 54 NSWLR 368; R v PLV (2001) 51 NSWLR 736; R v Shore (1992) 66 A Crim R 37; Samuels v Songaila (1997) 16 SASR 397; Sherratt v R (1993) 171 LSJS 482, considered.

R v M, WJ
[2005] SASC 272

Court of Criminal Appeal:       Debelle, Besanko and Sulan JJ

  1. DEBELLE J:        I agree with the substance of the reasons of Besanko and Sulan JJ.  I agree this appeal should be dismissed.

  2. BESANKO J:        In my opinion this appeal should be dismissed.  Subject to some observations of my own, I am in general agreement with the reasons of Sulan J.

  3. The appellant submitted that the sentencing Judge made two factual errors.  First, he submitted that the Judge sentenced the appellant on the basis that the offending occurred against a background of uncharged offending over a period of two years or so whereas the relevant period was about a year.  As to this submission, I agree with the reasons of Sulan J.  Secondly, the appellant submitted that the Judge erred in finding that the appellant stopped offending because the victim complained to her…

Continue reading R v M, WJ

Sign in free to access the full text

Details
AGLC
R v M, WJ [2005] SASC 272
Case
[2005] SASC 272
Decision Date

CaseChat Overview and Summary

The appeal was brought by the appellant against his sentence following a conviction by a judge alone of unlawful sexual intercourse, indecent assault, and attempted sexual intercourse. The appellant was sentenced to six years imprisonment with a non-parole period of three years and six months. The appellant had commenced a relationship with the victim's mother around 1987, and the offending occurred after the family moved house in 1989. The offending ceased when the appellant became aware that the victim had awakened and objected to his conduct. In 1991, the victim complained to her mother about the abuse approximately twelve months after the offending had stopped, but her mother did not act upon the complaint. A complaint to the police was made in March 2003 when the relationship between the appellant and the victim's mother ended. The appeal sought to determine whether the sentence was manifestly excessive, whether the sentencing judge failed to take into account the relevant sentencing standards as they applied at the time of the offending, and whether the sentencing judge made errors of fact in sentencing the appellant.

The court considered the appellant's arguments that the sentence was manifestly excessive and that the sentencing judge failed to apply the sentencing standards as they existed at the time of the offending. The court also examined whether there were any errors of fact in the sentencing process. In relation to the argument that the sentencing judge should have applied the sentencing standards from the time of the offence, the court noted that the general rule is that legislation will not operate retrospectively unless the legislature clearly states that an amendment will have retrospective effect. The court held that the principle against retrospective operation applied to legislation that increased penalties, and the appellant was liable to be sentenced under the penalty provisions as they applied at the time of the offence. The court found that the two errors identified by the appellant were not significant enough to amount to appealable error or to conclude that the sentence was manifestly excessive.

The court dismissed the appeal against the sentence. The court held that the sentence was appropriate and did not consider it necessary to apply today's standards to the appellant's case. The court emphasised that offences involving unlawful sexual intercourse with children under 12 years of age, when there are multiple offences committed over a period of time, should attract a starting point of about 12 years imprisonment. This starting point would be subject to reduction based on factors such as a plea of guilty, cooperation with the police, and genuine contrition. The court did not wish to be taken as suggesting a precise figure, as the starting point might vary in appropriate cases.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The two errors which I have identified, when considered in the background of the offending in this case, are not of sufficient significance to amount to appealable error, or conclude that the sentence was manifestly excessive. The decision to apply today’s standards The appellant’s counsel submits that the sentencing judge should have applied the sentencing standard at the time of the offence. She submits that the sentencing patterns in 1991 were much lower for this type of offending than at the time when the appellant was sentenced. She submits that the length of sentences for this offending has increased over the years since the offences were committed. It was contended that the judge erred in that he failed to have regard to the position as it was in 1990. When considering legislative amendments, the principle has been that legislation will not operate retrospectively unless the legislature, by clear statement to the contrary, enacts that an amendment will have retrospective effect.[3] [3] See Maxwell v Murphy (1957) 96 CLR 261 at 267 In Fisher v Hebburn Ltd[4], Fullagar J said:There can be no doubt that the general rule is that an amending enactment – or, for that matter, any enactment – is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement.[5][4] (1960) 105 CLR 194[5] (1960) 105 CLR 188 at 194 The presumption is strictly applied in the interpretation of penal statutes because of the injustice that results from giving provisions, which create offences, retrospective effect. The application of the principle to legislation which increases penalties was considered in Samuels v Songaila.[6] The court held that the common law presumption against the retrospective operation of legislation applied, and the defendant was liable to be sentenced under the penalty provisions as they applied at the time of the offence. In that case, penalties had been increased in the amending legislation. Bray CJ and King J observed that if penalties had been decreased the principle may not apply, but that it was unnecessary to determine that question.[6] (1977) 16 SASR 397 On occasions when sentencing courts do not appear to be imposing sentences of sufficient severity, the Court of Appeal will indicate that sentences for a particular class of offending should be increased in the future. The community is put on notice that sentences for that offending will increase. In addition, the court may set a guideline sentence for certain types of offending. The new standard or guideline may have the effect of increasing sentences in the future. R v D[7] was an example of the court indicating that, for certain types of sexual offending, the sentences should be increased. In D, the Chief Justice reviewed a number of decisions for offences of unlawful sexual intercourse with children. He said:It is not necessary for the court to give a warning before increasing the range of penalties for a particular type of offending: Poyner v The Queen (1986) 60 ALJR 616; Yardley v Betts (1979) 22 SASR 108 at 113-114, per King CJ; R v Lewfatt (1993) 3 NTLR 41 at 43-44, per Angel J and (at 45-46) per Priestley J. Nevertheless, as the cases cited recognise, warnings do have a part to play in the sentencing process. I consider it appropriate that the heavier penalty should be imposed in cases in which a conviction is recorded hereafter or a plea of guilty is entered hereafter. Although the heavier range of penalties could be applied in the present case, I consider that as a matter of fairness the present case should be dealt with by reference to the standard reflected in the previous decided cases to which I have already referred.In my opinion offences involving unlawful sexual intercourse with children under 12 years of age, when there are multiple offences committed over a period of time, should attract as a starting point a head sentence of about 12 years imprisonment. In saying that I refer to a sentence imposed under s 74(7) of the Act and to a single sentence imposed under s 18A of the Criminal Law (Sentencing)Act 1988 (SA). That starting point would be subject to reduction on account of a plea of guilty, co-operation with the police, genuine contrition and so on. It is impossible to be precise in these matters, and I do not wish to be taken as suggesting a precise figure. In an appropriate case the starting point might be higher or lower.[8][7] (1997) 69 SASR 413[8] (1997) 69 SASR 413 at 424

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.