R v P, NJY - [2014] SASCFC 10

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
R v P, NJY
[2014] SASCFC 10
Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice David and The Honourable Justice Parker)
19 February 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER
Appeal against sentence - appellant pleaded guilty in the Youth Court to one count of Rape - appellant pleaded guilty on the basis that he was recklessly indifferent as to whether the victim was consenting - the appellant was aged 16.5 years and and the victim was aged 14 years at the time of the offending - the appellant was sentenced to a term of detention of one year, ten months and two weeks.
Whether the sentence imposed was manifestly excessive - whether the sentencing process has miscarried as a result of factual errors made by the sentencing Judge - whether the Judge erred in imposing a period of detention - whether the Judge erred in failing to suspend the sentence of detention - whether the Judge gave sufficient weight to the object and policies of the Young Offenders Act 1993 (SA).
Held per David J, dismissing the appeal (Vanstone and Parker JJ concurring):
1. The sentence imposed was appropriate having regard to the gravity and seriousness of the offence.
2. The sentencing Judge's remarks made it clear, by necessary inference, that he had appropriate regard to sections 3 and 23(4) of the Young Offenders Act 1993 (SA) and the personal circumstances of appellant.
3. The sentencing Judge's mis-characterisation of the appellant's 'reckless indifference' is of little moment and makes no difference to the gravity of the offending.
4. The sentencing Judge's description of the offending in his sentencing remarks as 'the most serious crime of rape' and his purported mistakes as to the facts of the case evince no error.
Young Offenders Act 1993 (SA) ss. 3, 23; Criminal Law Consolidation Act 1935 (SA) ss. 47, 48, referred to.
A, MC v Police (2008) 102 SASR 151, applied.
M, MA v Police [2013] SASCFC 140, considered.

R v P, NJY
[2014] SASCFC 10
Full Court: Vanstone, David and Parker JJ

VANSTONE J: I agree that the appeal should be dismissed and with the reasons of David J.
DAVID J: The appellant (A) pleaded guilty to one charge of rape contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA) (CLCA). At the time of the offending he was 16.5 years of age. The maximum penalty is imprisonment for life but because he was a youth the maximum penalty that could have been imposed was detention for three years.[1]
[1] Section 23(2) Young Offenders Act 1993.
The victim (V) was a 14-year…

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 P, NJY

Details

AGLC: R v P, NJY [2014] SASCFC 10
Case: [2014] SASCFC 10
Decision Date: 19 February 2014

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, R, by the Youth Court for the offence of rape. R, who was 16.5 years old at the time of the offending, pleaded guilty on the basis of reckless indifference to the victim's consent. The victim was 14 years old. R was sentenced to one year, ten months, and two weeks detention, with the sentencing judge refusing to suspend the sentence.

The central legal issues before the appellate court were whether the sentence imposed was manifestly excessive, whether the sentencing judge had made factual errors that led to a miscarriage of the sentencing process, and whether the judge erred in imposing a period of detention or in failing to suspend it. The court was also required to consider whether sufficient weight had been given to the objects and policies of the *Young Offenders Act 1993* (SA).

The court considered the appellant's plea of guilty, which was based on his assertion that he did not turn his mind to the possibility that the victim's wriggling and apparent intoxication indicated a lack of consent, and that he should have made further inquiries. The court also took into account the appellant's background as a refugee from Sudan, his limited formal education during his childhood, his exposure to violence, his recent arrival in Australia, and his current engagement in Year 12 studies, noting he had no prior criminal history. The court contrasted the appellant's subjective account with the victim's statement, which described her vomiting, falling asleep, and being raped by an unknown male whom she later identified as the appellant, stating she had not given permission.

The court found that the sentencing judge had erred in failing to give sufficient weight to the appellant's youth and his background, particularly in the context of the *Young Offenders Act*. The court determined that the sentence of detention was excessive and that a suspended sentence was appropriate. The appeal against sentence was allowed, and the sentence was varied to a term of detention of 10 months, suspended upon the appellant entering into a good behaviour bond for 18 months.

Orders

Orders of the court

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Background

Background to the litigation

A pleaded guilty in the Youth Court and he was sentenced to a term of detention of 22 months and two weeks. The sentencing Youth Court Judge refused to suspend that term of detention. The Judge indicated that if it wasn’t for his plea of guilty he would have been sentenced to a period of 30 months detention.Background In submissions on sentence counsel for A described the offending in the following terms: The plea’s entered on the basis of recklessness. There is no suggestion of course that [V] was physically fighting the complainant off, although I think she says she pushed him off at one stage. I hasten to add that there’s absolutely no requirement that [V] fight him off, she doesn’t have to and I’m in no way suggesting that there was a fault on her own behaviour.Nonetheless she was clearly somewhat drunk. My client instructs that when he was kissing her and she was moving beneath him in terms of wriggling around and so on and so forth, he at the time did not turn his mind to the possibility that that could indicate that she was not in fact consenting to the sexual intercourse and it’s on that basis that the plea is entered, in terms of that being a basis of recklessness. The plea is entered, also of course on the basis that the law says that he should have asked, he should have made all due inquiries with [V] as to whether she did in fact want to have sex with him. Also of course he should have noted perhaps that she was under the effect of alcohol, that she may not have been in a position where she could fully and properly indicate her wishes and again, he didn’t turn his mind to make proper inquiries in relation to that. As matters progressed, he did in fact have sex with her and it is on that basis that the plea is entered, as I have said. After sex had completed, my client then returned into the main group of the party, spoke to his friend and left. Counsel then outlined A’s personal background and referred to a report which was tendered to the Court pursuant to s 32 of the Young Offenders Act 1993 (SA) (Young Offenders Act). The details of that report were referred to in submissions before this Court. In short, A was born in the Sudan during that country’s civil war. His father left the family when A was quite young to go to the front to fight and A was left in a small rural agrarian village with his mother and his brother. During that time he had very little formal education. He witnessed examples of extreme violence which occurred because of the civil war. His concept of the offence of rape was that it involved weapons and severe physical violence and because of that it was put that he may not fully appreciate the severity of his behaviour. After spending time in a refugee camp in Kenya, the family managed to come to Australia and he could be described as a relatively recent immigrant. He started school since arriving in Australia and is now studying for Year 12. He has no previous criminal history. At sentencing submissions, the prosecutor in outlining the basis of fact alleged said:[V] states that in the evening of Saturday, 11 August, she attended at a house party in company with her twin sister, [G], and some other friends at a party or an address in Ridgehaven. Whilst at that particular party, she had consumed some alcoholic beverages which made her feel sick and drunk. She states that she vomited prior to going to one of the bedrooms at that address to lie down. She fell asleep while she was in that room. Whilst in the room a person unknown to her, but she had seen at the party earlier, raped her vaginally using his penis. She states that the room was dark and she was unable to see his face, but could see that he was wearing an American-style baseball cap.She describes pushing the male away and leaving the room, and proceeding to another room in the house where she spoke to other people at the party, and thereby made the disclosures to them. She says she saw the defendant leave the room, recognised him as an African male that she had seen earlier in the yard at the party, and that no permission was given with respect to the sexual intercourse.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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