R v Omana - [2007] SASC 392

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v OMANA
[2007] SASC 392
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice Layton)
16 November 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Appeal against sentence - appellant convicted of unlawful sexual intercourse with victim T aged 15 years and victim N aged 16 years - appellant aged 32 years at time of offending - victims affected by alcohol and cannabis - trial judge sentenced appellant to one term of imprisonment of three years and eight months with respect to the offending against T - a sentence of 18 months was imposed with respect to the offending against N - sentences to be served cumulatively - a non-parole period of three years was fixed - whether sentence manifestly excessive - relevant factors. Held: appeal allowed - appellant re-sentenced.
Criminal Law Consolidation Act 1935 (SA) s 364(3); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Petrovski [2005] SASC 330, unreported, CCA, 1 September 2005; R v B, J [2007] SASC 67, unreported, CCA, 2 March 2007; R v Smith (2007) 97 SASR 302; R v Halse (1997) 70 SASR 456, discussed.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE

R v OMANA
[2007] SASC 392
Court of Criminal Appeal: Doyle CJ, Nyland and Layton JJ

DOYLE CJ: I agree with the orders proposed by Nyland J, and with the reasons that she gives for making those orders. There is nothing that I wish to add.
NYLAND J: The appellant pleaded guilty to a charge of indecent assault, and two charges of unlawful sexual intercourse relating to a victim, T, who was aged about 15. The appellant also pleaded guilty to two counts of indecent assault relating to a victim, N, who was aged about 16.
At the time of the offending, the maximum penalty for the crime of indecent assault was imprisonment for eight years, and the maximum penalty for the crime of unlawful sexual intercourse was seven years.
On 13 June 2007, a District Court judge imposed a sentence of imprisonment of three years and eight months with respect to the offences relating to T, and a sentence of 18 months with respect to the offences relating to N. He ordered that the two sentences be served cumulatively. That resulted in a head sentence of five years and two months. The judge fixed a non-parole period of three years. The sentence was directed to commence from 11 May 2006.
The appellant has appealed against that sentence on the ground that the head sentence and non-parole period are manifestly excessive. In addition, there was a complaint that the trial judge erred in failing to suspend the…

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 Omana

Details

AGLC: R v Omana [2007] SASC 392
Case: [2007] SASC 392
Decision Date: 16 November 2007

CaseChat Overview and Summary

The case of R v Omana involved an appeal against the sentence of the appellant, who was convicted of unlawful sexual intercourse with two victims, aged 15 and 16, while he was 32 years old. The victims were under the influence of alcohol and cannabis at the time of the offences. The trial judge imposed a sentence of three years and eight months for the offence against the 15-year-old victim, and 18 months for the offence against the 16-year-old victim, to be served cumulatively, with a non-parole period of three years. The appellant appealed, arguing that the sentence was manifestly excessive.

The court was required to consider whether the sentence was manifestly excessive, taking into account the relevant factors. The court noted that the trial judge gave full weight to the victims' impact statements, which highlighted the serious and traumatic impact of the appellant's actions. The court also considered the marked disparity in ages between the appellant and the victims, the breach of trust involved, and the fact that the offences occurred on one occasion against the background of a long-standing friendship with the victims and their families.

The court found that the sentence was manifestly excessive, and the appeal was allowed. The appellant was re-sentenced to a term of imprisonment of two years and six months with a non-parole period of one year and three months. The court noted that the offending conduct was serious but did not appear to be of the same magnitude as that described in previous cases where there was persistent conduct over a number of years which constituted a gross breach of trust. The court also took into account the appellant's lack of relevant prior record of offending and his apparent contrition.

The court ordered that the appellant be re-sentenced to a term of imprisonment of two years and six months with a non-parole period of one year and three months. The appellant was to serve the sentence cumulatively with any other sentence he may be serving.

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

Another case referred to by counsel for the appellant was R v Halse[4]. That was also referred to the court on the hearing of the appeal in R v B, J and I adopt what Gray J there said about it (at [22])[5]:Counsel for the respondent made reference to the case of Halse, where an immediate custodial term was imposed. This is a notoriously difficult offence in which to compare sentences imposed on different offenders. The circumstances vary significantly. Age can be misleading as a measure of maturity. The decision in Halse does not assist in the present case – the accused was aged 37 years and had relevant criminal antecedents, including offences of attempted rape and gross indecency.[4] (1997) 70 SASR 456[5] [2007] SASC 67, unreported judgment of the CCA, delivered 2 March 2007Conclusion: In my opinion, it was appropriate for the judge to give full weight to what the victims said in their victim impact statements, despite the way in which the matter resolved. If the matter had resolved on the basis that the girls had been consenting parties, that might be different, as that would be inconsistent with some of what they said in their victim impact statements. That, however, is not the case. Rather, the resolution of the matter simply indicates an inability of the prosecution to prove the appellant’s knowledge or awareness of their lack of consent. That does not negate the serious and traumatic impact of his actions upon them. Nor does the fact that the girls were living away from home lessen the seriousness of the appellant’s conduct. That aspect of the matter is also relevant to the argument as to there being a breach of trust. I do not think the sentencing judge purported to treat the appellant’s conduct as amounting to the sort of breach of trust which would fall within the traditional categories referred to by Gray J in R v B, J. He simply referred to the conduct as being “an element of breach of trust as a result of the appellant having had a trusting relationship, not only with the girls but with their families”. The fact that the offending occurred at a time when the girls were living away from home as a result of what appeared to be family problems, and in a place in which they were entitled to feel secure, and against a background of a long-standing friendship with them, as well as their respective families, in my opinion was a serious aspect of the appellant’s conduct, which the sentencing judge was entitled to treat as a matter of aggravation. In addition, there was a marked disparity in ages as the appellant was 32 at the time of the offending, and the girls were aged 15 and 16. There is, however, some force in the submission that the offences were not representative of a course of conduct. Although there was some break in the activity when the appellant moved in and out of the room to attend to his child, all of the offences occurred on the one occasion against the background of the appellant not having any relevant prior record of offending. He also appears to be truly contrite. The offending conduct was serious but does not appear to be of the same magnitude as that described in Smith where there was persistent conduct over a number of years which constituted a gross breach of trust.

Ratio Decidendi

Legal Principle Established

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