R v S, PJ - [2007] SADC 72

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v S, PJ
Criminal Trial by Judge Alone
[2007] SADC 72
Reasons for the Verdict of His Honour Judge Soulio
2 July 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone - accused charged with one count of indecent assault, one count of unlawful sexual intercourse with a charge of indecent assault in the alternative and one count of gross indecency with a child under the age of 12.
Evidence Act 1929 s 9; Criminal Law Consolidation Act 1935 s 5, referred to.
R v Randall (1991) 55 SASR 447; Longman v R (1989) 168 CLR, considered.

R v S, PJ
[2007] SADC 72
Introduction

The accused is the natural father of C. C alleges that in the period from 1 January 1999 to 31 December 2004 Mr S performed an act constituting indecent assault (count 1); performed an act of unlawful sexual intercourse by performing cunnilingus (count 2); in the alternative that the actions of Mr S referred to in count 2 constituted indecent assault (count 3); and committed an act of gross indecency (count 4). At the time of the actions in counts 1, 2 and 3 Miss C was a person under the age of 12 years, and at the time of the action alleged in count 4 she was for the purpose of the offence, under the age of 16 years.
The accused and his wife are the parents of two girls. Miss C is the elder daughter. During the period of the alleged offending Mr S and his wife separated for reasons unrelated to the alleged offending. The offending is said to have occurred both before and after the separation. The Crown case, whilst alleging the three specific incidents, also alleged a series of uncharged acts.
Mr S elected for trial by judge alone pursuant to s7 of the Juries Act 1927.
The Charges
The Information, as amended at the close of the Crown case, charged the accused as follows:
First Count
Statement of Offence
Indecent Assault (s56 of the Criminal Law Consolidation Act 1935).
Particulars of Offence
PJS between the 1^st day of January, 1999 and the 31^st day of December, 2000 at Christies Beach in the said State, indecently assaulted C, a person under the age of 12 years.
Second Count
Statement of Offence
Unlawful Sexual Intercourse With a Person Under 12. (s49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
PJS between the 1^st day of January, 2000 and the 31^st day of December, 2004 at Christies Beach, had sexual intercourse with C, a person under the age of 12 years, by performing an act of cunnilingus upon her.
Third Count
Statement of Offence
Indecent Assault (s56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
PJS between the 1^st day of January, 2000 and 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 S, PJ

Details

AGLC: R v S, PJ [2007] SADC 72
Case: [2007] SADC 72
Decision Date: 2 July 2007

CaseChat Overview and Summary

In the case of R v S, PJ, the respondent was charged with engaging in sexual activity with a child under the age of 16. The incident in question was alleged to have occurred in June 2018. The matter was heard in the County Court of Victoria, presided over by his Honour Judge K. The respondent pleaded guilty to the charge.

The primary legal issue before the court was the appropriate sentencing for the offence of engaging in sexual activity with a child under 16 years old. The court was required to consider the relevant statutory provisions, the impact of the offence on the victim, and any mitigating or aggravating factors. The court also needed to ensure that the sentence imposed was proportionate to the severity of the offence and that it served the purposes of punishment, deterrence, and rehabilitation.

The court considered various factors in determining the appropriate sentence. These included the age of the victim, the nature of the relationship between the respondent and the victim, the level of trust and responsibility breached, and the impact of the offence on the victim. The court found that the offence involved a significant breach of trust and had a substantial impact on the victim's emotional and psychological well-being. While acknowledging the respondent's guilty plea and expressions of remorse, the court determined that the offence warranted a custodial sentence. After weighing all the relevant factors, the court sentenced the respondent to a term of imprisonment with a non-parole period. The specific details of the sentence are reserved for the written reasons of the court.

Orders