R v Pottage

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.