R v Oberthur No. Sccrm-98-172 Judgment No. S6881
[1998] SASC 6881
•25 September 1998
R v OBERTHUR
[1998] SASC 6881
Court of Criminal Appeal: Prior, Lander, Wicks JJ
PRIOR J
1 On pleading guilty to unlawful sexual intercourse in the District Court, the appellant was sentenced to 21 months imprisonment. A non-parole period of 11 months was fixed. The sentence was suspended on the appellant entering into a bond to be of good behaviour for three years, conditional upon the appellant being under the supervision of a probation officer for the first 18 months. By this appeal, it is complained that the head sentence and non-parole period fixed are manifestly excessive. Particular reliance is placed upon six factors. They are particularised in the Notice of Appeal as follows:
This was not a breach of a position of trust.
The ‘victim’ was sexually experienced.
The plea was on the basis of digital penetration only.
The ‘victim’ had attended at the premises and specifically the bedroom of this appellant on her way to school.
The appellant was young being only 19 years of age at the time of the offence.
The relevant matters contained in the psychological report."
2 At the time of the offence the appellant was 19 years of age, the girl involved 14. The plea of guilty was accepted upon the appellant’s version of events, in which digital penetration was admitted against the original charge alleging vaginal penetration.
3 The material before the sentencing judge disclosed that the girl involved stopped in to see the appellant on her way to school. The appellant had called at the girl’s house the previous night and suggested that she do so. An intimate exchange occurred in the appellant’s bedroom. The appellant touching the girl’s breast and vagina whilst she touched the appellant in the groin area. The appellant placed his finger in the girl’s vagina after he had pushed their jeans and underwear down past their knees.
4 It was put to the sentencing judge that the appellant stopped the digital penetration on a complaint from the girl that it was painful. She bled profusely. Blood was all over her jeans. She took her jumper off and wrapped it around her waist to cover the blood stains when she walked to catch her bus to school. On the bus, she was upset and told her friends what had happened.
5 In his sentencing remarks, the sentencing judge referred to the appellant’s history of appearances before courts, beginning in February 1993. None of those appearances involve offences of a sexual nature. His Honour said that he accepted that this was not a case of a man of very mature years in a position of trust taking advantage of a young girl. Nevertheless, the sentencing judge said that the purpose of the law was clear, namely to protect adolescent children from their own immature sexual curiosity. The judge said that the appellant knew the girl’s approximate age and that she was legally incapable of consenting to sexual intercourse. He referred to the need to deter persons from taking advantage of under age girls in sexual ways. On that basis, the sentencing judge said the only appropriate sentence was one of imprisonment. Having regard to the appellant’s own youth and that no element of persuasion or inducement on the appellant’s part was involved, he sentenced the appellant to 21 months imprisonment. The judge said that but for the plea of guilty the sentence he would have imposed was 24 months imprisonment. In considering whether to suspend that sentence, the judge referred to the fact that the appellant had breached a probation order in May 1995, observing that did not engender confidence in any promise by the appellant to be of good behaviour. However, the judge was obviously persuaded by submissions and, in particular, a report from a psychologist, to proceed to suspend, when taking into account the fact that the appellant was intent on turning his back on his former life style, having recently undertaken a course in metal fabrication and being intent on entering an apprenticeship.
6 In the course of submissions to this Court, counsel suggested that the sentencing judge had begun at too high a level in fixing 24 months as an appropriate sentence before giving any discount for the plea of guilty. Reliance was placed upon the recent decision of this Court in R v Halse . In that case a 37 year old man received a sentence of two years imprisonment for unlawful sexual intercourse with a girl aged approximately 15 years and three months, whom the appellant believed to be of or above the age of 16 years, that that appellant believed was the legal age of consent to sexual intercourse. The appellant had a long criminal history, including an offence of gross indecency as a juvenile and an offence of attempted rape when he was 18 years of age. A further fact in that case was that the appellant had been in custody for 10½ months. It was not possible to back-date the sentence because the appellant was on parole when the offence took place. At the date of the commission of the offence, the outstanding balance of the sentence imposed for the previous offence was two months and 28 days. That sentence came into effect immediately upon the imposition of the sentence for unlawful sexual intercourse. Besides that, the sentencing judge was required, by the Criminal Law (Sentencing) Act 1988, s31(2) to direct that the sentence for the unlawful sexual intercourse be cumulative upon the unexpired portion of the previous sentence. A sentence of eight months imprisonment was imposed resulting in a head sentence of 10 months and 28 days, when added to the balance of the sentence remaining in respect to the previous matter.
7 In that case the sentencing judge said that he thought that the appropriate sentence for the unlawful sexual intercourse, before any reductions, was imprisonment for two years. Nothing was said about how much was allowed for the plea of guilty at the earliest opportunity but if a reduction by approximately 25 per cent was made, the sentence would have been reduced to 18 months, which would have been further reduced because of time spent in custody, close to the sentence imposed by the sentencing judge.
8 In the Court of Criminal Appeal, Duggan J said that the application of the relevant statutory provisions led to a measure of unfairness. His Honour said that if it had been possible to back-date the sentence, a non-parole period would have been appropriate. The appellant was deprived of this when the trial judge was left with no choice but to deduct the time spent in custody. If the sentence remained as it was then, at the end of it, the appellant would have served approximately 21½ months without a non-parole period being set. It was on this basis that the sentencing judge was found to have erred. That is that the possible reduction of the head sentence, by reason of the circumstances in that case, was a matter to be taken into account in fixing sentence. The sentence was thus described as inappropriate. The case cannot be regarded as a powerful weapon in support of the appeal in the way put by counsel. There was no breach of trust. However, there was a significant aggravating factor in the disparity in the ages of the appellant and the complainant. In view of the loss of the benefit of a non-parole period and the circumstances of the offence itself, Duggan J was of the view that a sentence of 18 months would have been adequate.
9 Counsel for the respondent referred to a number of decisions .
10 It must never be forgotten that it is notoriously unsafe to attempt to compare one case with another and to draw comparisons. Nonetheless, against some of the observations made of unlawful sexual intercourse in Halse, I think the appellant has made good the argument that the head sentence is inappropriate. To start with a sentence of two years before taking account of the plea of guilty was, in all the circumstances of this case, too high. Of particular significance here is the age of the offender and the victim, the factual circumstances of the offence and the appellant’s particular circumstances. That is not to say this case alone, or in conjunction with the decision in Halse, establishes any sort of tariff for the offence of unlawful sexual intercourse.
11 I would allow the appeal and substitute a sentence of 15 months imprisonment, with a non-parole period of eight months suspended on the same conditions as were attached to the sentence now set aside.
LANDER J
12 I agree.
WICKS J
13 I agree.
PRIOR J
14 The order of the court is therefore as I have indicated.
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