R v Mountford - [2019] SASC 16

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v MOUNTFORD
[2019] SASC 16
Judgment of The Honourable Justice Nicholson
26 February 2019
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
The respondent pleaded guilty to and was entitled to substantial discounts with respect to two counts of unlawful sexual intercourse with a person under the age of 17 years, three counts of inciting or procuring the commission of an act of gross indecency by a person under the age of 16 years, one count of indecent assault, and one count of an act of gross indecency in the presence of persons under the age of 16 years. These offences concerned two victims and occurred in 2000.
The respondent was found guilty in the District Court of a further two counts of indecent assault and one count of unlawful sexual intercourse with a person under 12 years. These offences concerned a third victim and occurred in 2003-4.
Both sets of offending occurred as part of a course of conduct concerning other victims for which the respondent had already been sentenced to and served a term of imprisonment.
All of the unsentenced offending was referred to this Court for sentencing. In addition, the Director of Public Prosecutions applied for an order pursuant to s 57 of the Sentencing Act 2017 (SA) that the respondent be detained in custody until further order.
Held:
1. Application by the Director of Public Prosecutions pursuant to s 57 of the Sentencing Act 2017 (SA) dismissed.
2.       Respondent sentenced to imprisonment for five years backdated to commence 18 September 2017 for the seven counts in 2000 to which the respondent pleaded guilty.
3.       Respondent sentenced to imprisonment for three years and six months for the three counts in 2003-4 for which the respondent was found guilty in the District Court.
4.       The two prison terms are to be served cumulatively; the second prison term is to commence upon the expiration of the first prison term.
5.       A non-parole period of six years and ten months backdated to commence 18 September 2017 is fixed.
Sentencing Act 2017 (SA) s 57, s 68; Criminal Law (Sentencing) Act 1988 (SA) s 23; Criminal Law Consolidation Act 1935 (SA) s 49, s 56, s 58, referred to.
R v Mountford [2018] SADC 115; R v M, REM [2008] SASC 348; R v Hoare [2017] SASC 7, considered.

R v MOUNTFORD
[2019] SASC 16
Criminal: Application
NICHOLSON J.
Introduction

The respondent has an extensive history of serious sexual offending against children. He was most recently released from prison on 17 September 2017 after having completed a sentence of imprisonment for nine years.[1]
[1] A non-parole period of six years had been fixed but the respondent completed the head sentence without being given parole.
On 21 July 2016, the respondent was charged…

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 Mountford

Details

AGLC: R v Mountford [2019] SASC 16
Case: [2019] SASC 16
Decision Date: 26 February 2019

CaseChat Overview and Summary

The case of R v Mountford was before the court to determine an application by the Director of Public Prosecutions seeking a declaration that the respondent is a serious or violent offender or a dangerous sexual offender, and for an order that the respondent be detained under s 57 of the Sentencing Act 1991 (Vic). The applicant argued that the respondent, who had been convicted of multiple sexual offences, posed a significant risk to the community and required continued detention beyond the sentence imposed. The respondent opposed the application, asserting that the evidence did not support a finding that he remained a danger to the public and that the current sentence was sufficient.

The court was required to consider whether the evidence supported the conclusion that the respondent was a serious or violent offender or a dangerous sexual offender. This involved assessing the risk the respondent posed to the community and whether there was a need for continued detention beyond the sentence already imposed. The court also had to weigh the potential advantages of a future application by the Attorney-General, which would be based on more recent evidence, against the current application.

The court concluded that the current sentence, combined with the legislative entitlement for the Attorney-General to bring a future application, adequately protected the public. The potential future application would benefit from updated evidence, making it more reliable in determining whether the respondent continued to pose a risk to the community. The court noted that any future application would be based on evidence closer to the time of the respondent's proposed release, thereby providing a more accurate assessment of the risk he posed. Therefore, the court dismissed the Director’s application.

The court made several orders, including dismissing the Director’s application and sentencing the respondent to imprisonment terms for the various offences. The non-parole period was also fixed, with both sentences backdated to a specific date.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NICHOLSON J

The public is sufficiently protected at present by the sentence I have imposed and by the legislative entitlement in the Attorney-General to bring a further application pursuant to section 57 at an appropriate time and prior to the respondent’s release from custody. Subsection 57(3) provides as follows.If a person has been convicted of a relevant offence, the Attorney General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section.Any such future application brought by the Attorney-General would have the significant advantage, as compared with the present application, of being based on updated evidentiary material. As a consequence, the questions of whether the respondent were to continue to be “unwilling” to control his sexual instincts and whether there were to be a continuing need to protect the safety of the community, as at a time closer to the time of any proposed release from custody, are likely to be answered more reliably. For these reasons I refuse the Director’s application. Conclusion I make the following orders.1.The Director’s application is dismissed.2.With respect to the seven counts comprising the 2000 KK and GS offending the respondent is sentenced to imprisonment for five years backdated to commence 18 September 2017.3.With respect to the three counts comprising the 2003-4 JaS offending the respondent is sentenced to imprisonment for three years and six months.4.The prison term in order 3 is to be served cumulatively on the prison term in order 2 and is to commence upon its expiration.5.A non-parole period of six years and ten months backdated to commence 18 September 2017 is fixed.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

Full text does not contain this section.