R v Sansbury - [2007] SASC 396

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SANSBURY
[2007] SASC 396
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice White)
12 November 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Appeal against sentence - appellant pleaded guilty to three counts of unlawful sexual intercourse - Judge imposed sentence of imprisonment for 2 years 8 months, non-parole period 16 months - whether sentence manifestly excessive - whether Judge erred in failing to suspend sentence.
Held: Appeal allowed.
Criminal Law Consolidation Act 1935 (SA) s 49(3), s 364(3); Acts Interpretation Act 1915 (SA) s 16(1)(d); Criminal Law (Sentencing) Act 1988 (SA) s 10(4), s 18A, referred to.
Samuels v Songaila (1977) 16 SASR 397; Lomas & Symmons [2005] SASC 435, applied.

R v SANSBURY
[2007] SASC 396
Court of Criminal Appeal: Doyle CJ, Nyland and White JJ

DOYLE CJ: Mr Sansbury appeals against a sentence imposed on him by the District Court. A single Judge has granted permission to appeal.
Mr Sansbury pleaded guilty to three counts of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). Each offence was committed on the same occasion, involving the same young woman.
When the offences were committed, the maximum penalty for this offence was imprisonment for 7 years. The maximum has since been increased. However, the applicable maximum penalty is that which was in force when the offences were committed: see s 16(1)(d) of the Acts Interpretation Act 1915 (SA) and Samuels v Songaila (1977) 16 SASR 397.
Exercising the powers conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”), the Judge imposed a single sentence for the three offences. The Judge sentenced Mr Sansbury to imprisonment for two years eight months, and fixed a non-parole period of 16 months. But for the plea of guilty, and the indications of contrition, the Judge would have sentenced Mr Sansbury to imprisonment for three years six months. The Judge declined to suspend the sentence.
Mr Sansbury appeals on two grounds. First, on the ground that the sentence is manifestly excessive. Second, on the ground that the Judge erred in failing to suspend the sentence.
The circumstances of the offences
The offences were committed on 20 March 2006 at Point Pearce on the Yorke Peninsula.
At the time of the offences Mr Sansbury was 27 years of age. The victim, Ms TH, was 14 years old.
Mr Sansbury was originally charged with three counts of rape. A plea of guilty on alternative counts of unlawful sexual intercourse was accepted by the Director of Public Prosecutions in satisfaction of the information. That plea was accepted on the basis…

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 Sansbury

Details

AGLC: R v Sansbury [2007] SASC 396
Case: [2007] SASC 396
Decision Date: 12 November 2007

CaseChat Overview and Summary

The case of R v Sansbury involved the appellant, who had pleaded guilty to three counts of unlawful sexual intercourse, appealing against the sentence imposed by the District Court. The original sentence was imprisonment for 2 years and 8 months, with a non-parole period of 16 months. The central legal issue was whether the sentence was manifestly excessive and whether the Judge erred in not suspending the sentence. The appeal was heard by the Supreme Court, which needed to determine if the original sentence was appropriate given the circumstances of the case and the legislative intent behind sentencing for such offences.

The court examined the balance between the mitigating factors, such as the appellant's guilty pleas and remorse, and the aggravating factors, including the nature of the offences and the need for deterrence. The Chief Justice concluded that while there were compelling reasons to suspend the sentence, they were outweighed by the broader community interest in deterring similar offences. The appeal was allowed, and the sentence was altered to a single term of imprisonment for 2 years, with a non-parole period of 1 year. The court also directed that the new sentence and non-parole period would commence from the date of the original sentence, ensuring continuity under the provisions of the Criminal Law Consolidation Act.

Both Justices Nyland and White concurred with the Chief Justice’s decision and reasoning. They agreed that the appeal should be upheld and supported the proposed sentence, emphasizing the importance of maintaining consistent sentencing practices that reflect the seriousness of sexual offences and the legislative intent behind the sentencing framework. The final orders of the court set aside the original sentence and imposed a new sentence of imprisonment for 2 years, with a non-parole period of 1 year, effective from the date of the original sentencing.

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

After much thought I have come to the conclusion that the sentence should not be suspended. While there are significant matters supporting a decision to suspend, they are outweighed by the need to reflect the policy enunciated by Parliament, having regard to the circumstances of the particular case. It is not that it will never be right to suspend a sentence imposed for this offence. My conclusion is that in this particular case the circumstances supporting a decision to suspend are outweighed by the community interest in deterring offending of this kind.Conclusion For those reasons I would allow the appeal, set aside the sentence imposed by the District Court, impose a single sentence of imprisonment for 2 years, and fix a non-parole period of 1 year. But for the pleas of guilty, I would have imposed a head sentence of the order of two years and eight months. I would order that the sentence of imprisonment and the non-parole period operate from 22 June 2007, the date when Mr Sansbury was sentenced in the District Court. I would make that direction for the purposes of s 364(3) of the Criminal Law Consolidation Act, so that the operation of the head sentence and non-parole period is not treated as interrupted pending the determination of the appeal. NYLAND J: I agree that the appeal should be allowed for the reasons expressed by the Chief Justice and I agree with the sentence proposed by him. WHITE J: I agree with the orders proposed by the Chief Justice and with his reasons.

Ratio Decidendi

Legal Principle Established

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