R v Ross - [2018] SASCFC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ROSS
[2018] SASCFC 120
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Lovell)
21 November 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
The respondent pleaded guilty to one count of possessing child exploitation material, one count of disseminating child exploitation material, and two counts of rape. From a starting point of 5 years imprisonment, and applying a 30% discount for the respondent’s plea, the sentencing Judge imposed a sentence of 3 years and 6 months imprisonment with a non-parole period of 2 years. The sentencing Judge found good reason to suspend the sentence.
The Director of Public Prosecutions seeks permission to appeal against the sentence imposed on the ground that it is manifestly inadequate. The applicant submits that the sentencing Judge erred in two respects:
1.   In finding that there was good reason to suspend the sentence.
2.   In sentencing the respondent on the basis that he had an “intellectual disability”.
Held per the Court, granting permission to appeal and allowing the appeal:
1.   It was not open for the sentencing Judge to find good reason to suspend the sentence.
2.   The sentence imposed by the sentencing Judge is set aside.
3.   The respondent is resentenced to 4 years and 7 months imprisonment with a non-parole period of 3 years and 8 months, both the sentence and non-parole period to commence today, or from such time as the respondent is taken into custody, whichever is the later.
Criminal Law Consolidation Act 1935 (SA) ss 48, 63A(1)(a), 63(b); Sentencing Act 2017 (SA) ss 52, 53, 54(1)(b), referred to.
Everett v The Queen (1994) 181 CLR 295; Dinsdale v The Queen (2000) 202 CLR 321; AB v The Queen (1999) 198 CLR 111; R v Hibeljic [2018] SASCFC 35; R v Symons [2018] SASCFC 48; R v MJJ; R v CJN (2013) 117 SASR 81; R v Turvey (2017) 127 SASR 425; R v Fuller [2015] SASCFC 71; R v Belcher [2016] SASCFC 17; R v Nemer (2003) 87 SASR 168; R v Brace [2011] SASCFC 54, considered.

R v ROSS
[2018] SASCFC 120
Court of Criminal Appeal: Kourakis CJ, Blue and Lovell JJ

THE COURT: The complainant, a 14-year-old girl, sent to the respondent photographs of herself naked over the social media application Snapchat. The respondent saved the pictures onto his phone. He then threatened to distribute the photographs to other people in the local area unless the complainant had sex with him. The complainant had sex with him but only because 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 Ross

Details

AGLC: R v Ross [2018] SASCFC 120
Case: [2018] SASCFC 120
Decision Date: 21 November 2018

CaseChat Overview and Summary

In the case of R v Ross, the Court of Appeal considered an appeal by the Crown against the sentence imposed on the respondent who had pleaded guilty to multiple offences including possession and dissemination of child exploitation material and rape. The respondent, who was 20 years old at the time of the offences, had engaged in online communications with a 14-year-old girl, exchanging explicit images and engaging in coercive behaviour to compel her to engage in sexual acts. The appeal focused on whether the sentence imposed, which included a suspended sentence for one of the rape charges, was manifestly inadequate.

The primary legal issue before the court was whether the sentence was manifestly inadequate such that it warranted the court's intervention. The court had to balance various factors, including the severity of the offences, the respondent’s intellectual difficulties, and the likelihood of reoffending. The Crown argued that the sentence did not adequately reflect the seriousness of the crimes committed, particularly given the gravity of the rape charges, and that the suspended sentence was inappropriate.

The court acknowledged the seriousness of the offences and the need for general deterrence. It noted that while the respondent had some intellectual difficulties, these did not absolve him of responsibility nor did they negate his understanding of the wrongfulness of his actions. The court found that the sentencing judge had appropriately considered the respondent’s personal circumstances, including his age and intellectual difficulties, but ultimately determined that the sentence did not adequately reflect the gravity of the crimes. The court held that the sentence was manifestly inadequate and ordered a retrial on the suspended sentence for one of the rape charges, while confirming the sentences on the other charges.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

A sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result. The factsCounts 1 and 2 The respondent chatted with the complainant on the application Snapchat when she was aged 14 and he was 20. They both live in a small town in the State’s south-east. Apparently, they did not know each other prior to their communications on Snapchat. After some brief communications using the application, the respondent requested that the complainant send photographs of herself, naked, to him. He sent to her a photograph of his penis and she sent to him a picture of her naked chest. The respondent requested more images. The complainant sent to him two further images of her naked chest and one image of her vagina. The respondent kept the images on his phone. The images were found on his phone following a search by police. The respondent’s possession of the images is the subject of his plea of guilty to count 1. A few days later the complainant received a text message from the respondent. She did not recognise the number, and asked who was messaging her. The respondent replied, “we gotta make a deal”. She replied, “who is this and what do u want”. He responded, “I got something u would not want around town and it return u gotta meet up with me [sic]”. He then sent to her one of the images of herself naked. She asked him not to show anyone and said “u know im only 14”. The respondent replied “yea and u won’t tell anyone that were gonna fuck whenever I want either [sic]”. The complainant was clearly distressed by the respondent’s threats. At one point the respondent said “I can easily send them nudes all around town”, to which the complainant replied “Your threating my by saying that ok and please don’t [sic]”. He replied “All I wanna do if fuck u a few times and I won’t send the nudes around [sic]”. At another point, in response to the respondent saying “We will fuck as many times as I want to”, the complainant told him that she didn’t feel comfortable. The respondent replied, “Too bad”. The conversation continued, with the complainant begging the respondent to delete the photographs, and the respondent insisting that he would send them around town unless she agreed to have sex with him. The messages between the two of them continued in a similar manner for several months. In January 2017, the respondent sent two photographs of the complainant’s naked chest to her sister K. K suspected that the photographs were of her sister due to a visible piercing that she recognised. The respondent then attempted to use the photographs to persuade K to have sex with him. K refused. The respondent’s transmission of the photographs of the complainant to K is the conduct amounting to the offence of disseminating child exploitation material the subject of count 2.Counts 3 and 4 The two counts of rape were committed between December 2016 and May 2017, in the context of the respondent’s repeated threats to send the images of the complainant naked to people in the town unless she complied with his demands to have sex.

Evidence

Evidence Before The Court

The psychological and psychiatric evidence established that the respondent had some intellectual difficulties, but as the sentencing Judge acknowledged those difficulties did not affect the respondent’s ability to understand that what he was doing was wrong, nor did it prevent him from planning his conduct. As the sentencing Judge found, correctly in our view, the intellectual difficulties led to the respondent having “slightly less awareness of the consequences for her”. As Mr Reid observed:It could be construed that Mr Ross would have difficulty in making sense of more complex and subtle cues with regard to behaviour, particularly at the specific time of offending, but this does need to be balanced by the other evidence including the content of the messages sent on his mobile telephone.(Emphasis added) The respondent submits that this case is not so “rare and exceptional” as to justify granting permission to appeal, nor would the granting of permission to appeal advance any wider purpose than merely correcting an error. The respondent acknowledges that, while sentences for rape should only be suspended in “very rare case[s]”,[17] it is still an option that is open to sentencing judges if good reason is identified.[17] R v Fuller [2015] SASCFC 71 at [42]. The respondent submits that it was open to the Judge to take into account the respondent’s intellectual difficulties, as he described them, in exercising his discretion to suspend the sentence. The respondent submits that the respondent’s cognitive impairments are such that general deterrence is not as significant a factor as would generally be the case when sentencing for the crime of rape. The respondent submits that the evidence strongly supported the fact that it was unlikely that he would reoffend. The sentencing Judge, it is submitted, appropriately took into account the personal circumstances of the respondent, including his age and his intellectual difficulties, when considering both the head sentence and the decision to suspend the sentence. In all of the circumstances this was not a case where the prosecution had established that there existed the “rare and exceptional” circumstances such that permission to appeal should be granted.Discussion The maximum penalty in respect of count 1, Possessing Child Exploitation Material, is 5 years imprisonment. The maximum penalty in relation to count 2, Disseminating Child Exploitation Material, is 10 years imprisonment. The maximum penalty prescribed for the two counts of rape is life imprisonment. This Court has recognised that while there is no sentencing standard for rape, it is “one of the most serious offences known to the criminal law”.[18] It is a crime with “many variations”, precluding the identification of a range of available penalties. However, as Sulan J observed in R v Fuller “it is a very rare case in which a person convicted of rape would not receive an immediate custodial sentence.”[19][18] R v Belcher [2016] SASCFC 17 at [21].[19] R v Fuller [2015] SASCFC 71 at [42].

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.