R v Pottage - [2010] SASCFC 75

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v POTTAGE
[2010] SASCFC 75
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice David and The Honourable Justice Peek)
21 December 2010
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 - OTHER MATTERS
Appeal against sentence – appellant pleaded guilty to two counts of unlawful sexual intercourse with a person under 17 years contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) – appellant could have been charged under s 49(1) as the victim was aged 8 years – judge proceeded to sentence on the basis of the maximum penalty under s 49(1) instead of s 49(3) – whether judge erred in proceeding with regard to the wrong maximum penalty – whether judge erred in taking into account time spent in custody – whether judge correctly declared the appellant a serious repeat offender due to prior convictions.
Held: judge erred in proceeding to sentence with regard to the wrong maximum penalty and erred in making allowance for time spent in custody – appeal allowed – sentence considered afresh – appellant should be declared a serious repeat offender – new head sentence of nine years with a non-parole period of seven years and two months.
Criminal Law Consolidation Act 1935 (SA) s 49; Criminal Law (Sentencing) Act 1988 (SA) s 20B, s 18A, referred to.

R v POTTAGE
[2010] SASCFC 75
Court of Criminal Appeal: Duggan, David and Peek JJ

DUGGAN J: I agree with the reasons prepared by David J.
In my view the appeal should be allowed and the sentence imposed by the District Court Judge set aside.
I agree with the orders proposed by David J.
DAVID J: This is an appeal against sentence. There are two aspects to the appeal. Firstly, a complaint that the sentence was manifestly excessive and, secondly, a complaint that the sentencing Judge erred in declaring that the appellant be declared a serious repeat offender pursuant to s 20B of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”).
The charges
The appellant pleaded guilty to two counts of unlawful sexual intercourse. I set out the information:
First Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Timothy Richard Pottage on the 29^th day of March 2009 at Kudla, had sexual intercourse with [the complainant], a person of the age of 8 years, by inserting a finger into her vagina.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
Timothy Richard Pottage on the 29^th day of March 2009 at Kudla, had sexual intercourse with [the complainant], a person of the age of 8 years, by casing her to perform an act of fellatio upon him.
I also set out…

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 Pottage

Details

AGLC: R v Pottage [2010] SASCFC 75
Case: [2010] SASCFC 75
Decision Date: 21 December 2010

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, Mr Pottage, who had pleaded guilty to two counts of unlawful sexual intercourse with a person under 17 years, contrary to section 49(3) of the Criminal Law Consolidation Act 1935 (SA). The dispute arose because the sentencing judge proceeded to sentence the appellant on the basis of the maximum penalty applicable under section 49(1) of the Act, rather than the correct section 49(3), and also made an allowance for time spent in custody. The appeal was heard by Duggan, David and Peek JJ of the Supreme Court of South Australia.

The legal issues before the court were whether the sentencing judge had erred in proceeding with sentencing by reference to the incorrect maximum penalty, whether the judge had erred in taking into account time spent in custody when imposing the sentence, and whether the judge had correctly declared the appellant a serious repeat offender based on his prior convictions. The court was required to determine if these errors necessitated a fresh consideration of the sentence and the declaration.

The court found that the sentencing judge had indeed erred by applying the wrong maximum penalty and by making an allowance for time spent in custody. The court reasoned that the erroneous maximum penalty influenced the overall sentencing approach, including the declaration of the appellant as a serious repeat offender. The court also considered section 20B of the Criminal Law Consolidation Act 1935 (SA) regarding the declaration of a serious repeat offender, noting that the preconditions under section 20B(b) were met due to the appellant's prior convictions for serious sexual offences against children and the current offending involving an eight-year-old victim. The court highlighted the severity of both the earlier and present offending, the fact that the present offences were committed while on parole, and the psychiatric assessment indicating a risk of further offending.

Consequently, the appeal was allowed, and the original sentence was overturned. The court considered the sentence afresh, declared the appellant a serious repeat offender, and imposed a new head sentence of nine years imprisonment with a non-parole period of seven years and two months.

Orders

Orders of the court

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Background

Background to the litigation

In my view, the whole of the sentence including the declaration must be overturned. The basic mistake of setting the sentence against an erroneous maximum penalty clearly flows through to the question of whether the appellant should be declared a serious repeat offender. That being so, I turn to the question of resentencing including the question of whether the appellant should be declared a serious repeat offender.The original sentence and background facts Although this now becomes a matter of resentencing, it is instructive to look at the approach taken and basis for the sentence and declaration imposed by the sentencing Judge. On the day of the offending (20 March 2009) the victim was an eight year old girl. The appellant inserted a finger into her vagina (count 1) and then forced her to perform an act of fellatio upon him (count 2) (“the present offending”). These offences were committed in the presence of the victim’s nine year old brother. On 19 November 2007 the appellant was sentenced in the District Court for one count of aggravated serious criminal trespass in place of residence and one count of indecent assault (“the earlier offending”). The sentencing Judge on that occasion clearly summed up the earlier offending in her sentencing remarks when she said:At about 4 o’clock in the morning on 23 April 2004, you went to a house at Hampstead Gardens. You walked around the back and found the back door was unlocked. You walked through the kitchen, looked into the lounge room and went into the hallway. The house was occupied. There was a woman living there with her two daughters, one who was 11 years old and another who was three years old and her five-year-old son. They were all sleeping in the same bedroom. The children’s mother woke up to see you standing in the bedroom at arms-length away from her. You were wearing gloves and you had a balaclava over your face. You had a hand-made wooden knife you had painted silver. The mother thought the knife was a flick-knife. When she challenged you, you told her to go back to bed, pointing the knife at her head.Her children had, of course, been disturbed by what was happening. You told her not to scream or you would hurt the children. You went over to the bed where the 11-year-old girl was sleeping. You removed the blankets and in front of the mother you took the child’s pyjama pants and underpants off. You held the knife to the throat of the 11-year-old girl. She was shaking with fear. You leant over her and whispered in her right ear. You touched her in the pubic area, persisting, in spite of her mother’s protests and the child’s obvious discomfort.You waved the knife at the girl’s mother as she tried to get to the window to get help. She managed to unlock the window and run for help when you were distracted by the girl’s screams. The young girl kicked out at you to stop you touching her. You left through the window and she ran to the kitchen to try to telephone the police. She took her brother and sister outside to find her mother but had been unable to wake the neighbours. Police were called but you had left the area and were not apprehended.The sentencing Judge imposed a sentence for the earlier offending of four years imprisonment with a non‑parole period of two years.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I first turn to whether a declaration should be made that the appellant is a serious repeat offender. I set out in full s 20B of the Act:20B—Declaration that person is serious repeat offender(1)A person is liable to be declared a serious repeat offender if the following conditions apply:(a) the person (whether as an adult or as a youth)—(i)has committed on at least 3 separate occasions an offence to which this Division applies (whether or not the same offence on each occasion); and(ii)has been convicted of those offences; or(b) the person (whether as an adult or as a youth)—(i)has committed on at least 2 separate occasions a serious sexual offence against a person or persons under the age of 14 years (whether or not the same offence on each occasion); and(ii)has been convicted of those offences.(3)If a court convicts a person of a serious offence, and the person is liable, or becomes liable as a result of the conviction, to a declaration that he or she is a serious repeat offender, the court—(a) must consider whether to make such a declaration; and(b) if of the opinion that the person's history of offending warrants a particularly severe sentence in order to protect the community—should make such a declaration.(4)If a court convicts a person of a serious offence, and the person is declared (or has previously been declared) to be a serious repeat offender—(a) the court is not bound to ensure that the sentence it imposes for the offence is proportional to the offence; and(b) any non-parole period fixed in relation to the sentence must be at least four fifths the length of the sentence.In my view, a declaration that the appellant is a serious repeat offender should be made. The preconditions of s 20B(b) have been met. Although the appellant was not charged with an offence concerning a serious sexual offence against a person under the age of 14 years, nevertheless in the particulars of the charges it was clearly set out that the victim was eight years of age at the time of the offending. Both the earlier offending and the present offending are most serious examples of their type. During the earlier offending, the appellant had forced himself into a house and in the present offending spirited two children away and committed particularly heinous acts on an eight year old girl. Added to that, the present offending was committed whilst he was on parole for a relatively short period after the earlier offending. Matters that were personal to the appellant, both before the sentencing Judge and this Court, do not alter my view. The appellant was aged 44 at the time of the latter sentencing. Other than the earlier offending the appellant has a number of convictions for other minor offences. The learned sentencing Judge ordered a psychiatric report from Dr Ken O’Brien. In his conclusions in that report dated 19 April 2010, Dr O’Brien said:In summary, therefore, Mr Pottage has pleaded guilty on two separate occasions within the last six years with respect to the commission of sexual offences. Children have been involved on both occasions. He adamantly denies that he is sexually attracted towards children. Despite incarceration, parole supervision and attendance at a dedicated sexual offender treatment programme, he re-offended whilst still on parole and in therapy. In the body of this report, I have commented on this and have suggested that Mr Pottage is at risk for the commission of further sexual offences (particularly against children) unless he further participates in and satisfactorily completes a dedicated sexual offender treatment programme. Until he concludes such a programme (in this State or in Western Australia) and its would-be-benefits are carefully evaluated, he will remain at risk to the community.