R v S, N - [2010] SASCFC 54

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v S, N
[2010] SASCFC 54
Judgment of The Court of Criminal Appeal
(The Honourable Justice Anderson, The Honourable Justice David and The Honourable Justice Peek)
15 November 2010
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence – appellant pleaded guilty to three counts of indecent assault and eight counts of unlawful sexual intercourse against his stepdaughter and niece – offending ‘in the worst category of such offending’ – Judge imposed sentence of 31 years imprisonment reduced to 26 years for plea of guilty with a non-parole period of 17 years – whether sentence was manifestly excessive – whether sentence should have been reduced to take into account totality.
HELD: (Anderson and David JJ) appeal allowed – total head sentence is ‘crushing’ – head sentence and non-parole period should be reduced to make allowance for the principle of totality – appellant re-sentenced to 21 years imprisonment with a non-parole period of 14 years.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Rossi (1988) 142 LSJS 451; Postiglione v The Queen (1997) 189 CLR 295; R v Place (2002) 81 SASR 395; R v Randall-Smith & Davi (2008) 100 SASR 326, applied.

R v S, N
[2010] SASCFC 54
Court of Criminal Appeal: Anderson, David and Peek JJ

ANDERSON J: I agree that the appeal should be allowed and that the sentence should be a head sentence of 21 years with a non-parole period of 14 years. I agree with the reasons of David J.
DAVID J: The appellant appeals against a sentence imposed upon him in respect of three counts of indecent assault and one count of unlawful sexual intercourse against his stepdaughter (who I will refer to as “A”), and seven counts of unlawful sexual intercourse upon his niece (who I will refer to as “T”).
The offending represented a course of conduct against each child between May 1978 and October 1983. At the time these offences occurred both victims were under the age of 12 years, and at the time of sentence (22 July 2010) the appellant was aged 56 years.
The sentencing Judge imposed a total head sentence of 31 years. After taking into account pleas of guilty, he reduced the head sentence to 26 years. He set a non-parole period of 17 years. The Judge arrived at his sentence by firstly, imposing a single sentence of imprisonment for 14 years for the offences against A, and reducing that to 11 years and 6 months to give him credit for his pleas of guilty. He then imposed a separate head sentence of 17 years for the offences against T, and reduced that to 14 years and 6 months to give the appellant the appropriate benefit for his pleas of guilty. In both…

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 S, N

Details

AGLC: R v S, N [2010] SASCFC 54
Case: [2010] SASCFC 54
Decision Date: 15 November 2010

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, who had pleaded guilty to three counts of indecent assault and eight counts of unlawful sexual intercourse against his stepdaughter and niece. The sentencing judge had categorised the offending as being in the "worst category" and imposed a head sentence of 31 years imprisonment, reduced to 26 years to account for the guilty plea, with a non-parole period of 17 years. The appeal was brought before the Full Court of the Supreme Court of South Australia, comprising Anderson, David, and Peek JJ.

The central legal issues before the Full Court were whether the total head sentence of 26 years imprisonment was manifestly excessive, and whether the sentencing judge had erred in failing to adequately take into account the principle of totality when determining the sentence. The respondent argued that the sentence was justifiable given the severity and prolonged nature of the offending, the appellant's position of trust, the vulnerability of the young victims, and the presence of violence.

The Full Court, in allowing the appeal, acknowledged the difficulty of sentencing in such cases and agreed with the sentencing judge's methodology in grouping offences and making reductions for the guilty plea. However, Anderson and David JJ found that the total head sentence of 26 years was "crushing," particularly given the appellant's age and poor health, which diminished any realistic prospect of rehabilitation. They reasoned that while the judge had correctly considered totality at the end of the sentencing process, an insufficient allowance had been made. The court noted that the head sentence was significantly higher than those imposed for comparable offences in the state.

Consequently, the Full Court re-sentenced the appellant to 21 years imprisonment, with a non-parole period of 14 years, to give due allowance for the principle of totality. Peek J concurred with the outcome.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Wells, counsel for the respondent, argues that although the sentence imposed is a harsh one, nevertheless, that was justifiable. He submits that the sentencing Judge has quite properly placed the offending in the “worst category of such offending”, and points out the obvious supporting reasons, namely, that it was prolonged offending over a lengthy period of time, the appellant was in a position of loco parentis with both victims and involved a gross breach of trust, the victims were very young and vulnerable, and there were occasions of emotional and physical violence. He submits that in those circumstances, the sentencing Judge was correct in refusing to make any adjustment to the sentence for totality.Conclusion I acknowledge the force of Mr Wells’ argument. I agree that the Judge has gone about his task correctly. Sentencing for sexual offences on young children, when the offending took place over a number of years and against a background of many uncharged acts, is a very difficult process. In my view, the Judge’s method of grouping the offences and setting two terms pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) was a proper way of proceeding. Furthermore, the Judge was correct in reducing the head sentences for the benefit of the pleas of guilty in relation to both sets of offending. Also, there can be no argument about his decision to make one sentence in relation to one victim cumulative upon the other. It appears a logical and sensible thing to do because he was dealing with two different victims. He was also correct in looking at the question of totality at the very end, in accordance with the principle set out in R v Place[4] and R v Randall-Smith & Davi.[5]There can be no argument about how the Judge has dealt with the matter thus far. However, in my view, the total head sentence of 26 years imprisonment is a crushing one. [4] (2002) 81 SASR 395.[5] (2008) 100 SASR 326. The appellant is in poor health and is 56 years of age. A sentence of 26 years puts him in a situation where he could not hold out a proper measure of hope for, and encouragement to, “rehabilitation reform”.[6] Although the comparison of sentences is fraught with risk and is often unhelpful, it needs to be noted that the head sentence in this case is significantly greater than any other like offences imposed in this State. [6] R v Postiglione (1997) 199 CLR 295, 341 per Kirby J. In my view, the Judge has erred in not reducing, to a certain degree, the head sentence to make allowance for the principle of totality. I would therefore allow the appeal and set aside the sentence.Re-sentencing I have already indicated that I agree with the process undertaken by the sentencing Judge except for the last step of making no allowance for totality. In re-sentencing I agree with the head sentence of 26 years, and the way in which it has been arrived at. However, I would reduce that to a head sentence of 21 years. I would set a non-parole period of 14 years.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.