R v SIEBEN

[2010] SASCFC 14

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SIEBEN

[2010] SASCFC 14

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Anderson and The Honourable Justice David)

2 August 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - OTHER MATTERS

Appeal against sentence - appellant pleaded guilty to one count of unlawful sexual intercourse with a person under the age of 14 years - sentenced in the District Court of South Australia to three years imprisonment with a non-parole period of 18 months - whether sentence imposed is manifestly excessive - whether sentencing judge erred in failing to suspend the term of imprisonment.

Held:  sentence is not manifestly excessive - judge properly weighed up competing factors to decide there were no good reasons to suspend the term of imprisonment - appeal dismissed.

Criminal Law Consolidation Act 1935 (SA) s 49(1), referred to.

R v SIEBEN
[2010] SASCFC 14

Court of Criminal Appeal:  Duggan, Anderson and David JJ

1. DUGGAN J.         In my view the appeal should be dismissed.

2. I agree with the reasons prepared by David J.

3. ANDERSON J.     I agree that the appeal should be dismissed, and I agree with the reasons prepared by David J.

4. DAVID J.               This is an appeal against sentence.

5. On 15 April 2010, the appellant was sentenced in the District Court to a term of imprisonment of three years, with a non-parole period of 18 calendar months. He had pleaded guilty to one count of unlawful sexual intercourse with a person under the age of 14 years, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA). That offence was committed on 12 January 2009.

6. Parliament altered the penalty structure for the offence of unlawful sexual intercourse with an underage person on 15 May 2006. Prior to that date, the maximum penalty of life imprisonment was reserved for cases of unlawful sexual intercourse with a child under the age of 12 years. The penalty for unlawful sexual intercourse with children aged between 12 and 17 years was a maximum penalty of seven years. However, since the above date, the maximum penalty is life imprisonment for an act of unlawful sexual intercourse with a child under the age of 14 years. It is that maximum penalty which applies to the present case.

   Facts

7. The appellant had sexual intercourse with a person, whom I shall refer to as “E”, on one occasion, on 12 January 2009. At the time, E was aged 13 years and the appellant was aged 28. He was aged 29 at the date of sentence.

8. The appellant’s marriage had just broken down, and he met E by chance when visiting a neighbour. He got to know her through telephone contact and over the internet and they developed a friendship. E would come and visit him from time to time, and would use his computer. On 12 January 2009, the appellant telephoned E and met her at some neighbouring shops, and whilst walking towards her house with her they both stopped at a dry creek bed and sat under a bridge and talked for a while. The appellant then had vaginal intercourse with her. The act of intercourse took some three minutes, and that was the only occasion that it took place.

9. The appellant ceased having contact with E after that, and placed a block on his computer system whereby she was unable to contact him through the internet. When the offence became known to the authorities, the appellant made full admissions and pleaded guilty at the first opportunity in the Magistrates Court.

10. At his sentencing submissions, the sentencing judge was told that the appellant had good prospects of rehabilitation, was receiving ongoing treatment for depression, and at the time of sentencing submissions was in a stable and positive de facto relationship, with his partner expecting their first child in August 2010.

11. It was also pointed out to the sentencing judge that although the appellant has a number of antecedents - including damage to property, unlawful possession and a number of driving offences - this was his first serious breach of the criminal law. It was also pointed out to the sentencing judge that the present offending was one isolated occasion and was not part of a course of conduct.

12. In imposing the penalty referred to above, the sentencing judge indicated that but for the appellant’s early plea of guilty, he would have imposed a head sentence of four years.

    Appeal

13. There are two grounds of appeal. The first ground is:

    That the sentence is manifestly excessive.

14. Mr Muscat, counsel for the appellant, earnestly argues that in the circumstances of this case, a starting point of four years was manifestly excessive. He argues that it was an isolated occasion, for a short period of time, and clearly was not part of an ongoing relationship. He further submits that the appellant clearly regretted what he did, admitted to his behaviour at an early stage and has good prospects of rehabilitation. Mr Muscat argues that in those circumstances, a starting point of four years imprisonment is far too high.

15. I disagree. The intention of Parliament is clear by the recent dramatic increase in the maximum penalty for unlawful sexual intercourse with a person under the age of 14 years as indicated above. E was 13 years of age and a year eight school student. Although not as serious as offences which involve an ongoing relationship, nevertheless, the sentencing judged weighed carefully the nature of the offending, its inherent seriousness, and the need for personal and general deterrence against those matters personal to the appellant. I could find no error in his approach.

16. I would dismiss that ground of appeal.

17. The second ground of appeal is:

    That the learned sentencing judge erred in failing to suspend the sentence.

18. Mr Muscat argues that the sentencing judge erred when considering whether there was good reason to suspend the term of imprisonment when he said in his sentencing remarks:

    In my view, the seriousness of the offence as evidenced by the maximum penalty of life imprisonment, together with your criminal record, which although not extensive, is far from blameless, means that I cannot suspend the sentence that I must impose.

    Mr Muscat argues that the criminal record of the appellant is such that it should not have not been a factor in the process of considering whether there was good reason to suspend or not. He argues that the nature of the appellant’s criminal record is far less serious than the present offending.

19. In my view, the sentencing judge has shown no error in the exercise of his discretion. It is self-evident that the offence is serious, it is clear that he did not come before the court as a first offender and it was acknowledged by the sentencing judge that his criminal record was not extensive. The sentencing judge has properly weighed the competing factors in deciding there were no good reasons to suspend the term of imprisonment. I can find no fault in the exercise of that discretion.

20. I would dismiss that ground.

    Conclusion

21. I would dismiss the appeal.