R v RGC - [2020] SASCFC 102

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RGC
[2020] SASCFC 102
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Justice Doyle)
30 October 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS
Application for permission to appeal against sentence.
The respondent pleaded guilty to one count of maintaining an unlawful sexual relationship with a child contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this offence is life imprisonment.
The respondent was sentenced to a notional head sentence of 15 years imprisonment. After a discount of 20 per cent on account of the respondent’s guilty plea, the sentencing judge imposed a reduced head sentence of 12 years imprisonment and fixed a non-parole period of six years (being 50 per cent of the head sentence). Both the head sentence and the non-parole period were reduced by six months on account of the time spent by the respondent in custody and on home detention. The sentence ultimately imposed was a head sentence of 11 years six months imprisonment, with a non-parole period of five years six months.
The appellant’s sole ground of appeal is that the sentence is manifestly inadequate. The appellant accepts that the head sentence was within the permissible range, but contends that a non-parole period of 50 per cent of the head sentence was so manifestly inadequate as to warrant and require the intervention of the Court.
Held per Doyle J (Stanley and Parker JJ agreeing), granting permission to appeal and allowing the appeal:
1.      The non-parole period of 50 per cent of the head sentence was manifestly inadequate, given the absence of anything in the respondent’s offending or personal circumstances to suggest he had good prospects for rehabilitation or was otherwise an appropriate candidate for a lenient non-parole period.
2.      It is appropriate that the Court intervene in this case, so as to maintain proper sentencing standards and so as not to threaten public confidence in the administration of justice.
3.      The sentence is set aside. The respondent is re-sentenced using the same head sentence as the sentencing judge, namely 12 years imprisonment (after a 20 per cent reduction on account of his plea of guilty), but with a non-parole period of eight years imprisonment (being two-thirds of the head sentence). After an allowance of six months for the time spent in custody and on home detention, the adjusted head sentence is 11 years six months and the non-parole period seven years six months.
Criminal Law Consolidation Act 1935 (SA) s 50, referred to.
R v D (1997) 69 SASR 413; R v McIntyre [2020] SASCFC 101; R v Palmer [2016] SASCFC 34, considered.

R v…

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 RGC

Details

AGLC: R v RGC [2020] SASCFC 102
Case: [2020] SASCFC 102
Decision Date: 30 October 2020

CaseChat Overview and Summary

This matter concerned an appeal by the Director of Public Prosecutions against the sentence imposed on the respondent, RGC, by a sentencing judge. The appeal specifically challenged the adequacy of the non-parole period fixed by the sentencing judge, arguing it was manifestly inadequate in proportion to the head sentence. The appeal was heard by Stanley, Parker, and Doyle JJ.

The central legal issue before the Full Court was whether the non-parole period of 50 per cent of the head sentence was manifestly inadequate, given the nature of the offending and the principles governing the determination of non-parole periods. The Director contended that the sentencing judge had erred in fixing a non-parole period that was too low relative to the head sentence.

The Court, referencing its decision in *R v McIntyre*, noted that all sexual offending against children requires a strong sentencing response, particularly when it involves the abuse of trust and a vulnerable child. While acknowledging the latitude afforded to sentencing judges, the Court found that the non-parole period in this case could not be said to be the product of the balancing exercise contemplated by established principles. The sentencing judge had made no remarks suggesting optimism regarding the respondent's rehabilitation prospects, and there was no material before the court that reasonably justified such optimism. Although the respondent pleaded guilty, receiving the maximum discount, the Court found no proper basis to infer significant insight, remorse, or contrition, as the plea could have been primarily motivated by a desire for a reduced penalty.

The Court allowed the appeal, finding the non-parole period to be manifestly inadequate. The sentencing judge's allowance for time spent in custody and home detention had reduced the head sentence to 11 years and six months imprisonment and the non-parole period to five years and six months. The Court determined that the non-parole period should be increased.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

His Honour made an allowance of six months for the 15 days the respondent had spent in custody and the 17 months he had spent on home detention. This reduced the head sentence to 11 years six months imprisonment, and the non-parole period to five years six months.Consideration There is no challenge to the head sentence imposed by the sentencing judge. I agree that it was an appropriate penalty given the horrific nature of the respondent’s offending, the length of time over which it occurred, and the profound impact it has had on the victim’s life and will likely continue to have. As I have recently had occasion to reiterate in R v McIntyre,[2] all sexual offending against children calls for a strong sentencing response in order to ensure it adequately achieves the sentencing objectives of deterrence, punishment and protection of the community. However, that is all the more so where, as here, that offending involves the abuse and exploitation of a relationship of trust and a child with peculiar vulnerabilities.[2] R v McIntyre [2020] SASCFC 101. The Director’s complaint of manifest inadequacy in the sentence ultimately imposed is confined to an attack upon the adequacy of the non-parole period as a proportion of the head sentence. As it happens, this appeal raises considerations that have been the subject of detailed consideration in R v McIntyre,[3] which was heard by a similarly constituted Court the day before this appeal. I see no need to repeat or summarise the matters of principle that have I addressed at some length in my reasons in that case. I think it is sufficient for me to refer to what I said in those reasons in relation to the principles governing the fixing of an appropriate non-parole period,[4] an assessment of manifest inadequacy,[5] and the circumstances in which it is appropriate for this Court to grant permission in a Crown appeal against sentence.[6][3] R v McIntyre [2020] SASCFC 101.[4] R v McIntyre [2020] SASCFC 101 at [66]-[75].[5] R v McIntyre [2020] SASCFC 101 at [61]-[63].[6] R v McIntyre [2020] SASCFC 101 at [80]. Even accepting, as I do, the latitude which it is appropriate to afford a sentencing judge when fixing a non-parole period, the difficulty in this case is essentially the same as that identified with the non-parole period in R v McIntyre. It is that upon a fair reading of the sentencing judge’s remarks, and the material he had before him, it cannot be said that the non-parole period of 50 per cent of the head sentence was the product of a balancing exercise of the type contemplated by Kourakis CJ in R v Palmer.[7] [7] R v Palmer [2016] SASCFC 34 at [4]. The sentencing judge said nothing to suggest that he had any reason to be optimistic as to the respondent’s prospects of rehabilitation. More fundamentally, there was in any event nothing in the material before his Honour that could reasonably have justified any such optimism. While the respondent pleaded guilty, he was given the maximum available discount for this. While it may be contended that the sentencing judge was entitled to infer some level of remorse from this plea, I do not think it is appropriate in the present case to infer any significant degree of remorse in the absence of some corroboration of the same. There is every chance, in a case such as the present, that the plea was largely motivated by the desire to receive a reduced penalty. The best the respondent could point to was the statement through his counsel during sentencing submissions that her client understood the seriousness of his offending. In my view, there was no proper basis to infer any significant level of insight, remorse or contrition on the part of the respondent.