(The Honourable Chief Justice Kourakis, The Honourable Justice Anderson and The Honourable Justice David)
8 August 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - GENERALLY
Appellant charged with two counts of rape following a DNA match some sixteen years after the alleged offending. The appellant initially pleaded not guilty to the charges and only entered a guilty plea to both charges following a voir dire hearing. The appellant was sentenced to a single term of imprisonment of 16 years with a non-parole term of 10 years. The appellant now appeals against that sentence on the basis that it is manifestly excessive. The appellant argues that (1) a starting head sentence of 18 years was manifestly excessive, (2) that the sentencing Judge did not give enough discount for the appellant's guilty pleas, and (3) the sentencing Judge did not give enough consideration to the appellant's contrition and rehabilitation.
Held per the Court:
(1) The sentence in the current case is not manifestly excessive. Although it is severe, it is justifiably so. There is no sentencing tariff for the offence of rape and each case must be dealt with on its own merits. The offending in relation to each count was violent, it targeted vulnerable girls in isolated circumstances, and it involved two separate occasions with two separate acts of preparation and premeditation.
(2) The sentencing Judge's discount for the appellant's guilty pleas was adequate as they were only entered at a late stage, following a voir dire hearing.
(3) The sentencing Judge rejected the submission that the appellant could not remember the events which were the subject of the charges. There is no basis upon which to challenge the sentencing Judge's finding regarding the appellant's claimed loss of memory.
Court of Criminal Appeal: Kourakis CJ, Anderson and David JJ
KOURAKIS CJ: I agree that the appeal should be dismissed for the reasons given by David J. I wish only to make the following observations about the level of sentences imposed for offences of this kind.
In R v Colbert,[1] this Court dismissed an appeal by the Director of Public Prosecutions against a head sentence of nine years imposed on convictions for the attempted rape and gross indecency committed on a 15-year-old victim on one occasion, and convictions for two offences of rape committed on a 22‑year‑old victim on another occasion. The offences were predatory in nature, committed on victims who were stalked after leaving public transport stops. The appellant had pleaded guilty. The sentence was described…
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.
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Details
AGLC
R v Radford [2013] SASCFC 73
Case
[2013] SASCFC 73
Decision Date
CaseChat Overview and Summary
In *R v Radford*, the Court of Criminal Appeal of South Australia considered an appeal against sentence. The appellant, Radford, had been convicted of rape and appealed the severity of the sentence imposed by the sentencing judge.
The central legal issues before the Court were whether the sentence was manifestly excessive, whether the discount for the guilty pleas was adequate, and whether the sentencing judge erred in rejecting the appellant's claim of memory loss regarding the offences.
The Court held that the sentence was not manifestly excessive, finding it to be severe but justifiably so. It emphasised that there is no sentencing tariff for rape and that each case must be determined on its individual facts. The Court noted the violent nature of the offending, the vulnerability of the victims, and the premeditation involved across two separate occasions as factors justifying the sentence. Furthermore, the Court found that the sentencing judge had adequately discounted the sentence for the guilty pleas, given they were entered late in the proceedings after a voir dire. The Court also found no basis to challenge the sentencing judge's rejection of the appellant's claimed memory loss.
Consequently, the appeal was dismissed.
Orders
Orders of the court
Held per the Court:
(1) The sentence in the current case is not manifestly excessive. Although it is severe, it is justifiably so. There is no sentencing tariff for the offence of rape and each case must be dealt with on its own merits. The offending in relation to each count was violent, it targeted vulnerable girls in isolated circumstances, and it involved two separate occasions with two separate acts of preparation and premeditation.
(2) The sentencing Judge's discount for the appellant's guilty pleas was adequate as they were only entered at a late stage, following a voir dire hearing.
(3) The sentencing Judge rejected the submission that the appellant could not remember the events which were the subject of the charges. There is no basis upon which to challenge the sentencing Judge's finding regarding the appellant's claimed loss of memory.
(4) Appeal dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
It is trite to say that there is no tariff for the crime of rape and that each case must be dealt with on its own merits. The sentence is severe but, in my view, justifiably so. The offending in each case was violent. It targeted vulnerable young girls in isolated circumstances. It involved two separate occasions with two separate acts of preparation, each well thought out and premeditated. In my view, the sentence is not manifestly excessive. Conclusion I would dismiss the appeal.