R v SDF

The applicant, SDF, appealed against the sentence imposed by the District Court following his guilty plea to one count of indecent assault with a circumstance of aggravation that the offence was a domestic violence offence. The applicant was sentenced to imprisonment for 12 months, suspended after four months for an operational period of 12 months. The applicant was the complainant’s grandfather and at the time of the offence, he was 63 years old and the complainant was 18. The applicant had come to care for the complainant who was unwell and had been at home alone. The applicant gave the complainant a massage and she fell asleep. She awoke to find the applicant’s hand in her pants, on the outside of her underwear, rubbing the area of her genitals for a short time. The applicant left when the complainant rolled over and pretended to be asleep. The applicant pleaded guilty on the day set for trial after another count was discontinued. He had no previous criminal convictions, a good work history, and had not offended while on bail. The applicant suffered from depression. The sentencing judge found that the offence was a serious breach of trust. The appeal was based on the contention that the sentence imposed was manifestly excessive, particularly in light of the age of the applicant, his relationship with the complainant, and the lack of any premeditation in the offence.

The Court considered whether the sentencing judge had erred in finding that the offending was more serious than the comparable authorities cited to the sentencing judge. The Court noted that the sentencing judge had made provisional comments in the course of the sentencing hearing, which were not subsequently amended. The Court held that the sentencing judge had not erred in finding that the offence was a serious breach of trust. However, the Court found that the sentence imposed was manifestly excessive. The Court held that the sentence was manifestly excessive due to the applicant’s age, his relationship with the complainant, and the lack of any premeditation in the offence. The Court noted that the sentence imposed was significantly longer than those imposed in comparable cases.

The Court varied the sentence imposed in the District Court by substituting imprisonment for eight months instead of 12 months and substituting two months and four days instead of four months as the period after which the term of imprisonment is suspended for an operational period of 12 months. The Court granted the application, allowed the appeal, and varied the sentence as described. The Court held that the sentence imposed was manifestly excessive and varied the sentence to reflect the circumstances of the case.