R v McIntyre

Case [2020] SASCFC 101

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MCINTYRE

[2020] SASCFC 101

Judgment of The Court of Criminal Appeal

(The Honourable Justice Stanley, The Honourable Justice Doyle and The Honourable Justice Hughes)

30 October 2020

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS

Crown application for permission to appeal against sentence.

The respondent pleaded guilty to one count of making a communication for a prurient purpose and with the intention of making a child under the prescribed age amenable to a sexual activity contrary to s 63B(2)(b) of the Criminal Law Consolidation Act 1935 (SA), and one count of unlawful sexual intercourse with a person under 14 years of age contrary to s 49(1) of the Criminal Law Consolidation Act. The maximum penalties for these offences were 10 years imprisonment for a basic offence and life imprisonment, respectively.

Utilising s 26 of the Sentencing Act 2017 (SA), the sentencing judge imposed one sentence for both offences. The respondent was sentenced to a notional head sentence of five years imprisonment. After a discount of 25 per cent on account of the respondent’s pleas of guilty, her Honour imposed a reduced head sentence of three years nine months imprisonment, and fixed a non-parole period of one year 11 months imprisonment (being approximately 51 per cent of the head sentence).

The appellant contends that the sentence is manifestly inadequate. In support of this ground, the appellant relies upon what it contends was both a manifestly inadequate starting point for the head sentence, and a manifestly inadequate non-parole period as a proportion of the head sentence.

Held per Doyle J (Stanley and Hughes JJ agreeing), granting permission to appeal and allowing the appeal:

1.      The notional starting point of five years imprisonment was manifestly inadequate having regard to the particularly serious features of the respondent’s offending (including the exploitation and abuse of power inherent in the respondent’s offending given his mature age and the victim’s young age and peculiar vulnerabilities), and the absence of any materially mitigating personal circumstances.

2.      The non-parole period of approximately 51 per cent of the head sentence was manifestly inadequate given the absence of any basis for optimism as to the respondent's prospects of rehabilitation, or for otherwise fixing a lenient non-parole period.

3.      It is appropriate that the Court intervene in this case, so as to maintain proper sentencing standards and so as not to threaten public confidence in the administration of justice.

4.      The sentence is set aside. The respondent is re-sentenced on the basis of a notional starting point of seven years imprisonment, which after a reduction of 25 per cent on account of the pleas of guilty results in a head sentence of five years three months imprisonment. The non-parole period is fixed at…

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AGLC
R v McIntrye. [2020] SASCFC 101
Case
[2020] SASCFC 101
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the Director of Public Prosecutions against the sentence imposed on the respondent, McIntyre, for sexual offences. The appeal was heard by Stanley, Doyle, and Hughes JJ of the Supreme Court of South Australia. The Director contended that the head sentence imposed was manifestly inadequate, arguing that it was unreasonable or plainly unjust according to the principles established in *House v The King*.

The central legal issue before the Court was whether the original sentence was so demonstrably insufficient that appellate intervention was warranted. This required the Court to consider all relevant factors, including the objective seriousness of the offending, the maximum penalty, and the personal circumstances of the offender, to determine if there had been a misapplication of sentencing principles. The Court also had to assess whether the non-parole period fixed was appropriate, particularly in light of the offender's prospects for rehabilitation.

The Court reasoned that the report from Dr Raeside, a psychologist, was notable for its lack of any indication of the respondent’s meaningful insight into his offending, remorse, or contrition. This absence of insight contributed to Dr Raeside's concern about the risk of reoffending and provided no comfort regarding rehabilitation prospects. Applying the principles from *Hili v The Queen*, the Court concluded that the head sentence and non-parole period were manifestly inadequate. The Court found that the original sentence did not adequately reflect the features of the case and that the non-parole period did not align with the authorities, given the limited evidence of rehabilitation prospects.

Consequently, the Court granted the Director permission to appeal and allowed the appeal. The original sentence was set aside and substituted with a head sentence of five years and three months imprisonment, with a non-parole period of three years and six months. The sentences were backdated to 25 August 2020.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Alternatively, if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake the public confidence in the administration of justice, it may be appropriate to grant permission to appeal even though no point of general principle will be established by the case.[37][37] R v Osenkowski (1982) 30 SASR 212 at 213 (King CJ); R v Nemer (2003) 87 SASR 168 at [24] (Doyle CJ).Conclusion In my view, while conscious of the sound reasons for the Court’s usual reticence to intervene on the grounds of manifest inadequacy, this is an appropriate case in which to do so. I consider that the head sentence imposed did not adequately reflect the various features of the case to which I have referred. I also consider that the non-parole period fixed by her Honour did not reflect the approach required by the authorities to which I have referred, given the dearth of anything in the respondent’s offending or personal circumstances to suggest he had good prospects of rehabilitation or was otherwise an appropriate candidate for a lenient non-parole period. In the circumstances, I am satisfied that it is appropriate for this Court to intervene in the present case so as to maintain proper sentencing standards and so as not to threaten public confidence in the administration of justice. I would thus grant the Director permission to appeal and allow the appeal.Resentence Having decided to grant permission to appeal, and allow the appeal, it is appropriate for this Court to resentence the respondent. Like the sentencing judge, I would utilise s 26 of the Sentencing Act to impose a single penalty in respect of both offences. Given the various matters mentioned above in relation to both the circumstances of the offending and the personal circumstances of the respondent, I consider that an appropriate starting point is a notional head sentence of seven years imprisonment. For the reasons given by the sentencing judge, I would reduce this by 25 per cent on account of the respondent’s early pleas of guilty, giving a reduced head sentence of five years three months imprisonment. Turning to the non-parole period, the respondent’s lack of any prior offending of a similar nature, and his asserted preparedness to undertake any treatment that might be made available to him, provides some basis for believing that the respondent may be amenable to rehabilitation. However, given the respondent’s apparent lack of insight into the seriousness of his offending, and the absence of any display of contrition or remorse, his prospects for rehabilitation are at best guarded or moderate. I would fix a non-parole period of three years six months imprisonment (being two-thirds of the respondent’s head sentence). Orders For the reasons set out, I would grant permission to appeal and allow the appeal. I would set aside the sentence imposed, and substitute a sentence of five years three months imprisonment. I would fix a non-parole period of three years six months imprisonment. Like the sentencing judge, I would backdate the head sentence and the non-parole period to 25 August 2020.

Ratio Decidendi

Legal Principle Established

Ultimately, it seems to me that Dr Raeside’s report is most notable for what it does not say. It does not contain any reference to the respondent having shown any meaningful insight into his offending, or having expressed any remorse or contrition. In the circumstances, it was not surprising that Dr Raeside expressed a concern that the respondent was at risk of offending again in the future, and was not able to provide the Court with any comfort as to the respondent’s prospects for rehabilitation. Consideration of the head sentence The Director’s challenge to the respondent’s head sentence is based solely upon a contention of manifest inadequacy; that is, a contention that the head sentence was unreasonable or plainly unjust in the sense required by House v The King.[16] [16] House v The King (1936) 55 CLR 499 at 504-505. In Hili v The Queen,[17] the plurality of the High Court stated:[18]As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. …[17] Hili v The Queen (2010) 242 CLR 520.[18] Hili v The Queen (2010) 242 CLR 520 at [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). The plurality went on to explain that “what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence.”[19] An assessment of whether a sentence is manifestly excessive or inadequate thus requires a consideration of the range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the objective circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.[20] But ultimately, manifest excess or inadequacy is a conclusion, and may not permit of lengthy exposition.[19] Hili v The Queen (2010) 242 CLR 520 at [60].[20] R v Morse (1979) 23 SASR 98 at 99 (King CJ). In applying this approach, it must of course be borne in mind that there is no single correct sentence,[21] and that sentencing judges should be allowed “as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.”[22][21] Pearce v The Queen (1998) 194 CLR 610 at [46] (McHugh, Hayne and Callinan JJ); Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).[22] Johnson v The Queen (2004) 78 ALJR 616 at [26] (Gummow, Callinan and Heydon JJ); Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).