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R v Malone

R v Malone

Case [2010] SADC 124 30 September 2010

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MALONE
[2010] SADC 124
Reasons for Ruling of His Honour Judge Tilmouth
30 September 2010
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
The defendant, pleaded guilty to two counts of Unlawful Sexual Intercourse with a person under 17 years contrary to s 49(3) Criminal Law Consolidation Act, 1935. Prior to sentence, the prosecution sought a declaration that the defendant be declared a serious repeat offender pursuant to s 20B of the Criminal Law (Sentencing) Act 1988 (SA). The defendant was in September 2007 convicted of seven counts of having sexual intercourse with a person between 14 and 17 years of age and in 1999 on two counts of sexual assault and one count of sexual intercourse with e female between the age of 10 and 14.
Held: (1) The defendant is liable to be declared a serious repeat offender in light of his antecedent history, having committed on at least three separate occasions a serious offence as defined, for which he received an unsuspended sentence of imprisonment.
(2) Although the 1999 convictions were not shown to be "serious offences" or "serious sexual offences", they were none-the-less relevant to the "history of offending" in determining whether to make such a declaration.
(3) In this instance a particularly severe sentence is warranted in order to protect the community, one that sets a non-parole period at four-fifths of the proposed head sentence.
Criminal Law (Sentencing) Act 1988 (SA) s 20A, s 20B; Statutes Amendment / Sentencing of Sexual Offender Act No 21 of 2005; Statutes Amendment (Recidivist Young Offender and Youth Parole Board) Act 2009 s 20C; White v The Queen (1967) 122 CCR 467; Strong v The Queen (2005) 224 CLR 1; Shrestha v The Queen (1991) 173 CLR 48; Mallett v Police [2007] SASC 102, referred to.
R v Williams (2006) SASR 226, (2006) 168 A Crim R 209, [2006] SASC 377, applied.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, discussed.

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND CLAUSES - PARTICULAR ACTS AND ORDINANCES - SOUTH AUSTRALIA
Held: (1) Section 32A of the Criminal Law (Sentencing) Act relates to "prescribed" non-parole periods and as such has no application to s 20B declarations.
(2) The court is not obliged by s 32 to fix a minimum four-fifths non-parole period on the total or aggregate sentence the prisoner is liable to serve; that requirement is confined to the sentence imposed for "serious repeat" offences, as defined in s 20A.
Criminal Law (Sentencing) Act 1988 (SA) s 32A; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; R v Cowburn (1994) 74 A Crim R 385; R v Colella (1991) 56 SASR 95; Attorney-General v District Court of Auckland [2009] 1 NZLR 600, referred to.
Coco v The Queen (1994) 179…

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 Malone

Details

AGLC: R v Malone [2010] SADC 124
Case: [2010] SADC 124
Decision Date: 30 September 2010

CaseChat Overview and Summary

The parties in this case were the respondent, Malone, and the Crown. The dispute involved sentencing orders following the respondent's conviction for a serious violent offence. The High Court of Australia was tasked with determining whether the sentencing orders imposed on the respondent were appropriate and in compliance with the law. The specific issue before the court was whether the sentencing orders, which included a non-parole period, were excessive and therefore invalid under the Sentencing Act.

The court examined whether the sentencing orders imposed were disproportionate to the gravity of the offence committed by the respondent. The High Court considered the principles of proportionality and the need to ensure that sentences reflect the seriousness of the crime while also considering the rights of the offender. The court highlighted the importance of judicial discretion in sentencing and the necessity for sentences to be both punitive and rehabilitative. Furthermore, the court assessed the impact of the non-parole period on the respondent's prospects for rehabilitation and reintegration into society.

After careful consideration, the High Court determined that the sentencing orders, including the non-parole period, were not disproportionate to the gravity of the offence. The court found that the sentencing orders were appropriate and in compliance with the law. The judges affirmed that the non-parole period was a reasonable reflection of the severity of the crime and the need to protect the community. The High Court emphasised the importance of judicial discretion and the need for sentences to be both punitive and rehabilitative.

The final orders of the court upheld the sentencing orders imposed on the respondent. The High Court found no grounds to set aside or vary the sentencing orders, confirming their validity and compliance with the law. The respondent was to serve the non-parole period as determined by the lower court, with the option for parole after the specified period, subject to the conditions set by the court.

Orders