R v PILLING - [2010] SASCFC 28

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v PILLING
[2010] SASCFC 28
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Kelly)
27 August 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
Application by Director of Public Prosecutions for permission to appeal against sentence – respondent pleaded guilty to one count of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) – sentenced to imprisonment for three years and four months with a non-parole period of one year and eight months – whether sentence manifestly inadequate – whether sentence reflects error of principle.
HELD: permission to appeal granted – appeal allowed – sentence increased to six years with a non-parole period of three years.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Law (Sentencing) Act 1988 (SA) s 10(4) and s 29D, referred to.
R v D (1997) 69 SASR 413, applied.
R v Wilson [2009] SASC 92; R v Clifford [2004] SASC 344; Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; R v A, JW (2001) 80 SASR 246, discussed.

R v PILLING
[2010] SASCFC 28
Court of Criminal Appeal: Duggan, Gray and Kelly JJ

DUGGAN J: I would give permission to appeal against sentence, allow the appeal and set aside the sentence imposed in the District Court.
I would impose a sentence of imprisonment for six years and fix a non‑parole period of three years.
I agree with the reasons of Kelly J.
GRAY J:
In my view permission to appeal against sentence should be granted and the appeal allowed. I would resentence the defendant to a term of imprisonment of six years and fix a non-parole period of three years. I agree with the reasons of Kelly J.
KELLY J:
Introduction
This is an application by the Director of Public Prosecutions for permission to appeal against a sentence imposed in the District Court on 11 June 2010.
The respondent was convicted on his plea of guilty to one count of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty prescribed for this offence is life imprisonment.
The Judge sentenced the respondent to a term of imprisonment of three years and four months and fixed a non‑parole period of one year and eight months.
The Director applies for permission to appeal on the basis that the sentence is manifestly inadequate and that it fails to establish or maintain appropriate standards of punishment in relation to the offence of persistent sexual exploitation of a child. The respondent opposes the application and says that even though the sentence may have been merciful it was within the discretion available to be exercised by the sentencing Judge. It is not one…

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 PILLING

Details

AGLC: R v PILLING [2010] SASCFC 28
Case: [2010] SASCFC 28
Decision Date: 27 August 2010

CaseChat Overview and Summary

The Director of Public Prosecutions applied for permission to appeal against the sentence imposed on the respondent, who pleaded guilty to one count of persistent sexual exploitation of a child. The respondent was sentenced to imprisonment for three years and four months, with a non-parole period of one year and eight months. The Director argued that the sentence was manifestly inadequate and did not reflect the appropriate standards of punishment for this serious offence. The respondent opposed the application, asserting that the sentence was within the sentencing judge's discretion and not deserving of the Director's appeal.

The legal issues before the court were whether the sentence imposed was manifestly inadequate and whether it reflected an error of principle. The court needed to determine if the sentence was sufficiently severe to reflect the seriousness of the offence and to maintain appropriate standards of punishment. This involved considering the nature and extent of the offending, the age and relationship of the victim to the respondent, and the impact of the offending on the victim.

The court granted permission for the appeal and allowed the appeal, increasing the sentence to six years with a non-parole period of three years. The court found that the original sentence did not adequately reflect the seriousness of the offence and the need to maintain appropriate standards of punishment. The court considered the gravity of the respondent's conduct, which involved persistent and severe sexual exploitation of a child over a period of time. The court emphasised the importance of sending a strong message that such offences will be met with significant punishment.

Orders

Orders of the court

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Background

Background to the litigation

The Director applies for permission to appeal on the basis that the sentence is manifestly inadequate and that it fails to establish or maintain appropriate standards of punishment in relation to the offence of persistent sexual exploitation of a child. The respondent opposes the application and says that even though the sentence may have been merciful it was within the discretion available to be exercised by the sentencing Judge. It is not one of those rare and exceptional cases justifying the granting of permission to the Director.Background The respondent at the time of the offending was aged between 66 and 68 years. The victim was his step grand‑daughter. Most of the offending occurred in the home where the victim lived with her family during occasions when the respondent was visiting. On a small number of occasions some offending occurred at the respondent’s home during occasions when the child was visiting. The offences were committed at night when the respondent came into the child’s bedroom on the pretext of either putting her to bed or reading her a story. The offending consisted of the touching of the victim on the vagina, on her breasts, on her anus, causing the victim to masturbate the respondent’s penis, and on one occasion the respondent tried to place his penis in the child’s mouth. At times the respondent licked and bit the victim’s nipples, on other occasions he rubbed the victim’s vagina to an extent that she experienced pain there for the next couple of days. The sexual interference of the victim by the respondent occurred approximately every two weeks, sometimes every week. As the child grew older the touching became harder and went on for longer. Sometimes episodes of interference lasted for up to 20 minutes. The offending ceased when the child eventually told her father. The respondent thereafter voluntarily attended at a police station where he made admissions, although it appears that his attendance at the police station was in response to being told by the mother of the child that it was intended to make a statement to the police about what had occurred. Nevertheless, when the respondent was first arraigned on a single count of persistent sexual exploitation of a child he pleaded guilty. The matter was then listed for a disputed facts hearing on one aspect of the factual basis alleged by the prosecution. The disputed matter concerned the range of dates within which the offending occurred and also when the offending first began. It was made clear that the only matter disputed by the respondent was this aspect of the prosecution case. After hearing evidence from the complainant the trial Judge did not accept her evidence as to when the offending began and ruled that he would sentence the respondent on the basis of the admissions made by him in his interview with the police. Accordingly, the respondent was to be sentenced on the basis that the offending began when the complainant was aged approximately nine to nine and a half and ceased when she was approximately eleven or eleven and a half.

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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