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R v Major

R v Major

Case [1998] SASC 6569 20 March 1998

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IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

DOYLE, CJ, OLSSON and WILLIAMS, JJ

CATCHWORDS:

Criminal law - jurisdiction, practice and procedure - judgment and punishment.

Sentence - prosecution appeal against sentence - principles applicable to Crown appeal against sentence - respondent pleaded guilty to six counts of rape, two counts of indecent assault and two counts of burglary - unusual case - full and frank confession.

Strong remorse - good signs of rehabilitation - whether sentencing judge erred in application of totality principle - whether sentence wholly inadequate - whether reasonable member of public would regard sentence as inadequate - appeal allowed. Criminal Law (Consolidation Act) S352; Criminal Law (Sentencing) ActS18A, referred to. Everett v The Queen (1994) 184 CLR
195; Malvaso v The Queen (1989) 168 CLR 227; Griffiths v The Queen (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212; R v Dorning (1981) 27 SASR 481; R v Nixon (1993) 66 A Crim R 83; R v Knight (1981) 26 SASR 573; The Queen v Rossi (1988) 142 LSJS 451; Rumble v R (1977) 87 A Crim R 550; The Queen v Bird
(1987) 9 Cr App R(S) 77; The Queen v Lane (1996) 188 LSJS 93; Mill v The Queen
(1988) 166 CLR 59, applied. Arnold v The Queen (1996) 71 FCR 117; The Queen v Smith & Shoesmith (1983) 32 SASR 219, considered.

HEARING:

ADELAIDE, 19 February 1998 (hearing) 20 March 1998 (decision)

#DATE 20:3:1998

Appearances:

Appellant:

Counsel: Mr P Rofe QC

Solicitors: DPP (SA)

Respondent:

Counsel: Ms A Vanstone QC

Solicitors: Mr J Ibbotson

ORDER: appeal allowed.

DOYLE CJ

This is an application by the Director of Public Prosecutions for leave to appeal against a sentence imposed by a Judge of this Court.

The relevant facts and the relevant circumstances are set out in the reasons of Olsson J. I will not repeat them.

I agree with the decision of Olsson J, and with the substance of his reasons. There are a few matters on which I wish to add some remarks.

An unusual case

The facts set out in the reasons of Olsson J show that this is a quite unusual case. First, because of the number and seriousness of the offences to which the respondent pleaded guilty. Each offence was of a serious type. Each of them was, in my opinion, attended by circumstances that made it a relatively serious instance of its type. In particular, the entry into private homes at night, for the purpose of offending, adds to the gravity of the offences in the cases in which that was a feature of the offence. These are offences which cause considerable public alarm. The victim impact statement show that, years later, some of the victims still suffer serious adverse affects from the offences. Secondly, the case is unusual because the offending conduct continued over a prolonged period of time. The respondent had plenty of time, along the…

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.

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Details

AGLC: R v Major [1998] SASC 6569
Case: [1998] SASC 6569
Decision Date: 20 March 1998

CaseChat Overview and Summary

This appeal was brought by the Director of Public Prosecutions against a sentence imposed on the respondent by a judge of the Court of Criminal Appeal of South Australia. The respondent pleaded guilty to six counts of rape, two counts of indecent assault, and two counts of burglary. The Director argued that the sentence imposed was manifestly inadequate, amounting to an affront to the public conscience. The Court of Criminal Appeal considered the principles applicable to the Crown's appeal against sentence and the appropriate approach to sentencing in this unusual case. The Court found that the sentencing judge erred in her application of the totality principle and in her consideration of the appropriate sentences that would have been imposed had each offence been dealt with separately. The Court allowed the appeal, set aside the sentence imposed, and substituted a head sentence of 20 years' imprisonment with a non-parole period of 10 years. The Court emphasised the need to ensure that the punishment fits the crime and reflects the community's sense of justice.

Orders