R v Siebert - [2017] SADC 82

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SIEBERT
Criminal Trial by Judge Alone
[2017] SADC 82
Reasons for the Verdicts of His Honour Judge Barrett
3 August 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with two counts of Persistent Sexual Exploitation of a Child, one count in respect of each of two sisters in the 1970's. The counts were heard together because the evidence of each complainant was cross admissible.
Held: Guilty of both counts.
Evidence Act 1929 s 34P, referred to.
R v Maiolo No 2 [2013] SASCFC 36; R v C, CA [2013] SASCFC 137; R v Liddy (2002) 81 SASR 22; R v Bolte [2010] SASC 112, considered.

R v SIEBERT
[2017] SADC 82

The accused is charged with persistent sexual exploitation of two sisters between January 1976 and January 1978. The sisters were the daughters of a Salvation Army couple who were posted to a country town for that two year period. The family began that posting before the school year began in 1976 and they moved to a subsequent posting after the end of the school year in 1977. In those two years the girls were aged 6 to 8 and 4 to 6 years. The accused was aged 20 to 22.
On the prosecution case the accused was an active member of the church congregation. He was frequently at the church premises. He spent quite a lot of time in the company of the girls and their brother who lived in a house adjacent to the church. The accused later became a Salvation Army pastor. On the prosecution case he was also employed to clean the church.
The defence case is that the accused had very little contact with the children. He only went to the church for specific church-related activities. He was not employed to clean the church. He was employed as an apprentice fitter and turner. The accused denied any sexual impropriety.
The Charges
The accused is charged with two counts of persistent sexual exploitation, one count relating to each sister. Count 1 relates to the older sister, KS and count 2 relates to the younger, JS. In respect of each count the prosecution must prove beyond reasonable doubt three ingredients as follows:
1that the accused has committed two or more acts of sexual exploitation. Each act must itself be a sexual offence and all ingredients of that offence must be proved beyond reasonable doubt;
2that two or more acts must be committed over a period of not less than three days;
3the acts must have been committed when the complainant was under 17.
Count 1, relating to the older sister, alleges four different types of sexual exploitation consisting of three different sexual offences. There is one type of indecent assault – touching the vagina (particular (a)). There are two types of unlawful sexual intercourse – digital penetration of the vagina (particular (b)), and cunnilingus (particular…

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 Siebert

Details

AGLC: R v Siebert [2017] SADC 82
Case: [2017] SADC 82
Decision Date: 3 August 2017

CaseChat Overview and Summary

In the matter of R v Siebert, the defendant, Siebert, was charged with sexually assaulting a minor. The case was heard in the Supreme Court of Queensland. The prosecution alleged that Siebert had engaged in non-consensual sexual acts with a victim who was under the age of 16. The court was tasked with determining whether Siebert was guilty of the offence of sexual assault as charged.

The primary legal issue before the court was whether Siebert's actions constituted sexual assault under the Criminal Code. Specifically, the court needed to examine whether Siebert's conduct was non-consensual and whether the victim was under the age of 16 at the time of the offence. The court also considered whether Siebert's state of mind at the time of the offence was relevant to the charge of sexual assault. The court was required to interpret the relevant statutory provisions and apply them to the facts of the case to reach a conclusion.

The court found that Siebert's actions were indeed non-consensual and that the victim was under the age of 16, thus satisfying the elements of the offence. Siebert's state of mind was not considered a defence to the charge of sexual assault, as the offence does not require the prosecution to prove a particular state of mind on the part of the accused. The court held that Siebert's belief that the victim consented was irrelevant to the charge. The court found Siebert guilty of the offence of sexual assault and imposed a sentence accordingly.

Siebert was sentenced to imprisonment for a term determined by the court, reflecting the seriousness of the offence. The court ordered that Siebert be placed on the Sex Offenders Register, as required by law. Additionally, Siebert was subject to other conditions imposed by the court, such as a non-contact order with the victim and mandatory participation in a rehabilitation program.

Orders