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R v Power

R v Power

Case [2003] SASC 288 26 August 2003

Psychological Intervention

Criminal Law

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R v POWER
[2003] SASC 288
Court of Criminal Appeal: Doyle CJ, Besanko and Sulan JJ

DOYLE CJ I agree with the Orders proposed by Sulan J, and with the reasons that he gives.
BESANKO J I agree with the orders proposed by Sulan J and with his Honour’s reasons for those orders.
SULAN J The appellant pleaded guilty to two counts of indecent assault, one count of attempted serious criminal trespass in a place of residence, two counts of attempted aggravated serious criminal trespass in a place of residence, three counts of gross indecency and one count of rape. The offences occurred over a period from the 12 January 2000 to 23 September 2001. The appellant was sentenced to fifteen years imprisonment with a non-parole period of ten years. He has appealed against the sentence.
The offences
The first offence relates to an indecent assault on 12 January 2000 at South Brighton. A woman had alighted from a train at Brighton Station at around 7 p.m. that evening. As she was walking home she noticed the appellant walking behind her. The appellant who was walking on the other side of the street crossed to the side where she was walking. The woman became worried and she decided to cross the street. As she was stepping off the footpath, the appellant grabbed her from behind and pushed her to the ground. He fell on top of her. On falling the woman grazed her shoulder. She screamed and the appellant immediately got off her. The appellant then crossed to the other side of the road and begged the woman to show him her underpants. She refused. The appellant said that he knew where she lived. In her victim impact statement the woman described her physical injuries which included grazing to the left side of her body and general soreness. The result of the attack and the appellant’s statement that he knew where the victim lived has caused her to suffer panic attacks and fear for her and her family’s safety.
The second and third counts relate to offences that occurred on 16 September 2001. As to count 2, the occupier of premises at Glenelg returned to her residence on Sunday 16 September 2001, having been away for two days. On returning she observed that a leadlight panel next to the front door had been broken.
As to the third count, at about 9 a.m. on 16 September 2001, the occupier of premises at Glenelg North was in bed when she heard a knock on the front door of her flat. A short time later, she heard a window smash. She went outside to investigate and saw the appellant walking towards her. He was carrying a hoe. When the woman challenged him, he put down the hoe and walked away.
The fourth and fifth counts occurred around 8am on Monday 17 September 2001. The occupier of a unit at Darlington heard a noise at her front door. She looked out of 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 Power

Details

AGLC: R v Power [2003] SASC 288
Case: [2003] SASC 288
Decision Date: 26 August 2003

CaseChat Overview and Summary

In R v POWER, the appellant appealed against his sentence for multiple sexual offences. The Court of Criminal Appeal was asked to consider whether the sentence imposed by the primary judge was manifestly excessive. The appellant pleaded guilty to multiple counts of indecent assault, attempted serious and aggravated serious criminal trespass, gross indecency, and rape. The offending occurred over a period of nearly two years. The appellant was sentenced to fifteen years imprisonment, with a non-parole period of ten years. The appellant argued that the sentence was manifestly excessive and should be reduced.

The Court of Criminal Appeal considered the approach taken by the primary judge in sentencing the appellant. The primary judge identified notional sentences for each offence and then arrived at a total sentence by applying the principle of totality. The Court observed that the approach was in accordance with the decision in R v Place. The Court considered that while the notional sentences were within the limits that a court might impose, the sentence of fifteen years for a twenty-year-old offender was excessive. The Court noted that the appellant had demonstrated some insight into his offending and had expressed a wish to receive help to overcome his psychological problems.

The Court concluded that the sentence was manifestly excessive and substituted a sentence of twelve years imprisonment, with a non-parole period of seven years. The Court emphasised that the appellant would only be released if the Parole Board considered it appropriate to do so.

Orders