R v Marien

Case [2011] SASCFC 116

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MARIEN

[2011] SASCFC 116

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)

26 October 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE

Prosecution appeal against sentence - defendant pleaded guilty to persistent sexual exploitation of child - sentenced to five years' imprisonment with a non-parole period of three years and four months.

Whether sentence manifestly inadequate - approach of appellate court on prosecution appeals - consideration of sentencing guideline for cases of persistent sexual exploitation of children under 12 years of age.

Held:  Appeal allowed - defendant resentenced to ten years' imprisonment with a non-parole period of five years.

Criminal Law Consolidation Act 1939 (SA) s 352(1)(a)(iii), s 50, s 353, s 340.; Criminal Law (Sentencing) Act 1988 (SA) s 29D, referred to.
Everett v The Queen (1994) 181 CLR 295; R v Harkin (2011) 109 SASR 334, applied.
R v D (1997) 69 SASR 413; R v Mangelsdorf (1995) 66 SASR 60; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; Malvaso v The Queen (1989) 168 CLR 227; R v Drewett (1983) 35 SASR 344; R v Elliott (2001) 21 A Crim R 254; Lacey v Attorney-General (Qld) [2011] HCA 10; Police v Cadd (1997) 69 SASR 150; R v King (1988) 48 SASR 555; R v Place (2002) 81 SASR 395; R v Payne (2004) 89 SASR 49; R v Knott (2007) 169 A Crim R 291; Dinsdale v The Queen (2000) 202 CLR 321, considered.

R v MARIEN
[2011] SASCFC 116

Court of Criminal Appeal:       Gray, Sulan and Blue JJ

THE COURT: 

  1. This is an application by the Director of Public Prosecutions for permission to appeal against a sentence imposed in the District Court on 17 August 2011.[1]

    [1]    Criminal Law Consolidation Act 1935 (SA) s 352(1)(a)(iii).

  2. The defendant and respondent, Anthony Michael Marien, pleaded guilty on the morning of trial to the offence of persistent sexual exploitation of a child.[2] The maximum penalty for the offence is life imprisonment. The Judge sentenced the defendant to a term of five years’ imprisonment with a non-parole period of three years and four months’ imprisonment.

    [2]    Criminal Law Consolidation Act 1935 (SA) s 50.

  3. The Director applies for permission to appeal on the basis that the sentence is manifestly inadequate and that it fails to maintain appropriate standards of punishment in relation to this offence. The defendant opposes the application and submits that although the sentence may be moderate, it is not a rare and exceptional case requiring intervention by this Court.

    Background

  4. The victim of the offending is the daughter of the defendant’s…

Continue reading R v Marien

Sign in free to access the full text

Details
AGLC
R v Marien [2011] SASCFC 116
Case
[2011] SASCFC 116
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against the sentence imposed on the respondent, R v Marien, who had pleaded guilty to persistent sexual exploitation of a child. The sentencing judge had imposed a sentence of five years' imprisonment with a non-parole period of three years and four months. The Director contended that this sentence was manifestly inadequate and failed to uphold appropriate standards of punishment for such offences. The appeal was heard by Gray, Sulan, and Blue JJ.

The central legal issue before the appellate court was whether the sentence imposed was so manifestly inadequate as to warrant intervention by the Court of Criminal Appeal, particularly in light of established sentencing guidelines for persistent sexual exploitation of children under 12 years of age. The Court was required to consider the principles governing prosecution appeals against sentence, including the high threshold for granting leave to appeal and the circumstances in which an appellate court should interfere with a sentence, such as when it is demonstrably too low, shocks the public conscience, or fails to establish or maintain adequate sentencing standards.

The Court applied the well-established principles for prosecution appeals against sentence, noting that leave to appeal is typically granted only in rare and exceptional cases to avoid infringing the principle of double jeopardy. However, the Court also affirmed that intervention is justified to correct sentences that are manifestly inadequate, idiosyncratic, or so disproportionate to the seriousness of the crime as to shock the public conscience or shake public confidence in the administration of justice. The Court considered the sentencing guideline case of R v D, which suggested a starting point of 12 years' imprisonment for persistent sexual activity against a child under 12 by a person in a position of authority. Applying these principles and considering the gravity of the offending, which involved repeated sexual interference with a child aged 9 and 10, the Court found the original sentence to be manifestly inadequate.

Consequently, the Court allowed the appeal, set aside the original sentence, and resentenced the respondent to ten years' imprisonment with a non-parole period of five years, commencing from the date of his custody.

Orders

Orders of the court

1. That permission to appeal be granted and the appeal allowed.

2. That the sentence imposed by the sentencing Judge is set aside and, in substitution, a sentence of ten years’ imprisonment, with a non-parole period of five years’ imprisonment is imposed. The sentence and non-parole period are to commence on 17 August 2011 when the defendant was taken into custody.

Background

Background to the litigation

The Director applies for permission to appeal on the basis that the sentence is manifestly inadequate and that it fails to maintain appropriate standards of punishment in relation to this offence. The defendant opposes the application and submits that although the sentence may be moderate, it is not a rare and exceptional case requiring intervention by this Court. Background The victim of the offending is the daughter of the defendant’s former partner. The defendant was sentenced on the basis that the offending occurred between September 2008 and September 2009, during which time the complainant was 9 and 10 years of age. The offending involved repeated sexual interference, usually when the complainant was absent from school due to illness. She suffered from chronic colds and ear infections; her school records show an absence from school on 40 occasions over the relevant period. The offending involved touching of the vagina and digital penetration of the vagina. Specific acts included two occasions when the defendant performed cunnilingus, masturbation and ejaculation in the presence of the victim, rubbing of his penis on her vagina and the placement of a vibrator on her vagina. The Judge had regard to the personal antecedents of the defendant. The Judge accepted that the defendant had been a good father to his three children from a former relationship and noted that he had no prior convictions. The Judge noted that during the period of offending the defendant was abusing both alcohol and marijuana which is likely to have impacted on his judgment and behaviour. Reference was made to the decision of R v D,[3] to which the Judge had regard. The Judge considered a starting point of five years and six months’ imprisonment to be appropriate, reduced to five years taking into account the defendant’s plea of guilty. A non-parole period of three years and four months was fixed. [3] R v D (1997) 69 SASR 413.The appeal The Director submits that the sentence imposed is manifestly inadequate. It is contended that it fails to maintain adequate standards of punishment for the offence, and fails to reflect the seriousness of the offending conduct and the need for general deterrence. More particularly, the Director submits that R v D[4] provides a starting point of 12 years’ imprisonment for cases involving persistent sexual activity over a period of time, by a person in a position of authority against a child under the age of 12. [4] R v D (1997) 69 SASR 413. Counsel for the defendant submits that, although low, the sentence is not so low so as to warrant intervention by this Court upon a prosecution appeal. The approach of the appellate court It is well established that the Court should grant leave to the Director to appeal against sentence only in a rare and exceptional case.[5] In Everett,[6] the High Court explained that the underlying rationale is the principle of double jeopardy: [5] Everett v The Queen (1994) 181 CLR 295 at 299. [6] Everett v The Queen (1994) 181 CLR 295 at 299-300. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a “court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified.” In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick C.J. in Griffiths v The Queen:“an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”The reference to “matters of principle” in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick C.J. saw as constituting “error in point of principle”.(Citations omitted). In Osenkowski, King CJ observed:[7]The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience. In Nemer,[8] Doyle CJ said that it has been established by the High Court that in order to obtain leave to appeal against sentence, the Director must do more than establish that an error has occurred:[9]The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”. Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. (Citations omitted) [7] The Queen v Osenkowski (1982) 30 SASR 212 at 213.[8] R v Nemer (2003) 87 SASR 168.[9] R v Nemer (2003) 87 SASR 168 at [24].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.