R v Mackay

[2019] SASCFC 45

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MACKAY

[2019] SASCFC 45

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Bampton)

9 May 2019

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD

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 - OTHER MATTERS

Appeal against sentence.

The appellant pleaded guilty to maintaining an unlawful sexual relationship with a child contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA). The complainant was 17 years old at the time of the offending and was the appellant’s high school student. The appellant was sentenced to a head sentence of four years and five months and 19 days, with a non-parole period of two years and one month. The sentence was not suspended.

The principle grounds of appeal were that the sentencing Judge had incorrectly sentenced the appellant for uncharged acts of abuse and on an incorrect factual basis. The appellant also appealed on grounds that the sentence was manifestly excessive and that the sentencing Judge erred in not suspending the sentence.

Held per Nicholson J (Peek and Bampton JJ agreeing) allowing the appeal:

1.       The impugned passages in the sentencing remarks are sufficiently ambiguous to cause real doubt as to the way in which the uncharged conduct was dealt with by the sentencing Judge.

2.       An unacceptable risk exists that the severity of the sentence imposed may have been informed by an incorrect factual basis.

3.       The sentence imposed by the District Court is set aside. The appellant is resentenced to imprisonment for three years with a non-parole period of 16 months.

4.       The term of imprisonment in (3) is suspended upon the appellant entering into a good behavior bond.

Criminal Law Consolidation Act 1935 (SA) s 50; Sentencing Act 2017 (SA) s 71, s 96, referred to.
R v Horstman [2010] SASC 103; The Queen v De Simoni (1981) 147 CLR 383; R v Hibeljic [2018] SASCFC 35, discussed.
R v Ttikirou [2018] SASCFC 76, considered.

R v MACKAY
[2019] SASCFC 45

Court of Criminal Appeal:   Peek, Nicholson and Bampton JJ

1. PEEK J:   I would allow the appeal. I agree with the orders proposed by Nicholson J and with his reasons.

   NICHOLSON J.

   Introduction

2. The appellant,[1] after pleading guilty, was convicted in the District Court of one count of maintaining an unlawful sexual relationship with a child and has appealed against the sentence imposed.[2]

   [1]    A Judge of this Court granted permission to appeal on 18 February 2019.

   [2] Contrary to section 50 of the Criminal Law Consolidation Act 1935 (SA), the maximum penalty for which is imprisonment for life.

3. The sentencing Judge imposed a head sentence of four years, five months and 19 days and…