R v SKILBECK - [2010] SASCFC 35

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SKILBECK
[2010] SASCFC 35
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Kelly)
24 September 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - INTELLECTUALLY HANDICAPPED OFFENDER
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - REFORMATION AND REHABILITATION
Criminal law - prosecution appeal against sentence - defendant pleaded guilty to unlawful sexual intercourse with a person under 14 years - where defendant suffers intellectual impairment - where defendant previously convicted of indecent assault approximately 20 years earlier - where sentencing Judge imposed head sentence of 18 months imprisonment and set a non-parole period of 12 months and suspended the sentence - where five month delay between sentence and appeal - where defendant re-engaged in rehabilitation program between sentence and appeal - whether sentence manifestly inadequate - whether sentencing Judge erred in suspending sentence.
Held (Gray and Kelly JJ, Duggan J concurring): Appeal allowed - sentence manifestly inadequate - sentence did not reflect the gravity of the offending or the manifest policy of the criminal law in relation to the protection of minors - sentence increased to three years imprisonment with a non-parole period of 18 months - sentence should be suspended - given the defendant’s re-engagement with a rehabilitation program an immediate custodial sentence would impede rehabilitation.
Criminal Law Consolidation Act 1935 (SA) s 49(1), referred to.
Mooney (unreported, Court of Criminal Appeal, Victoria, 21 June 1978); Veen v The Queen (No 2) (1988) 164 CLR 465; Barnes v Police [2006] SASC 295, discussed.
R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; Mason-Stuart v The Queen (1993) 61 SASR 204; R v Anderson [1981] VR 155; Scognamiglio (1991) 56 A Crim R 81; R v Letteri (unreported, Court of Criminal Appeal, New South Wales, 18 March 1992); Parnis v The Queen (1993) 49 FCR 304; R v Wiskich (2000) 207 LSJS 431; Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575; R v Leach (2003) 85 SASR 139; R v Coleman (2001) 122 A Crim R 230; R v Todd [1982] 2 NSWLR 517; Mill v The Queen (1988) 166 CLR 59; Wright (1989) 45 A Crim R 423; Duncan v The Queen (1983) 47 ALR 746; R v Bell [1982] Qd R 216; R v Van Der Horst [2006] SASC 243, considered.

R v SKILBECK
[2010] SASCFC 35
Court of Criminal Appeal: Duggan, Gray and Kelly JJ

DUGGAN J: I agree with the orders…

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 SKILBECK

Details

AGLC: R v Skilbeck [2010] SASCFC 35
Case: [2010] SASCFC 35
Decision Date: 24 September 2010

CaseChat Overview and Summary

The case of *R v Skilbeck* concerned an appeal by the Director of Public Prosecutions against the sentence imposed on the defendant, who had been convicted of unlawful sexual intercourse with a 13-year-old girl. The dispute centred on whether the original sentence was appropriate given the circumstances of the offending and the defendant's personal characteristics. The appeal was heard by Duggan, Gray, and Kelly JJ.

The primary legal issues before the court were whether the original sentence was manifestly inadequate, thereby eroding appropriate standards of penalty, and whether the sentencing judge had erred in suspending the custodial sentence. The court was required to consider the nature and circumstances of the offence, including the victim's age and vulnerability, the defendant's knowledge of these factors, and the defendant's own significant intellectual impairment and history of abuse. The court also had to weigh the purpose of sentencing, particularly the potential for reformation and rehabilitation.

The court acknowledged the gravity of the offence but also recognised the defendant's intellectual disability, which was estimated to be between 70 and 80 IQ, coupled with emotional instability, limited personal skills, and a history of severe childhood sexual abuse. The court noted that the defendant had shown signs of rehabilitation. Applying principles of sentencing, the court determined that an immediate custodial sentence could impede this rehabilitation. Therefore, while allowing the Director's appeal and increasing the head sentence to three years with a non-parole period of 18 months, the court exercised its discretion to suspend the sentence on the same conditions as previously imposed by the District Court Judge, finding good reason to do so in the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

It was argued that if the sentence is left to stand it would erode appropriate standards of penalty. Background The victim was a 13 year old girl. She had run away from her family home and, with a friend, was staying with a neighbour of the defendant for a number of nights when she was introduced to the defendant. Some days after they first met, the victim and her friend stayed at the defendant’s home for two days and two nights. During that period the defendant supplied the victim and her friend with food and alcohol and played pornographic movies in their presence. The defendant knew the age of the victim and that she had left home. On 22 March 2009, 10 days or so after the girls first stayed at the defendant’s home, the defendant and his neighbour met with the victim and another girl who had also run away from home, at a shopping centre. The prosecution alleged that on this occasion the defendant gave the victim’s friend, who was 12 years of age, a box of cigarettes. The neighbour invited the girls to his house, but later in the evening he called them over to the defendant’s house. There is some dispute about how this occurred. The Director asserted that the neighbour left the girls at his house and went to the defendant’s house where they spoke for some time before the defendant invited the girls over. The defendant said that he did not invite them over; rather, the neighbour came to his house and called out to the girls who were in the neighbour’s unit. It was conceded that the defendant made a number of explicit sexual advances towards the victim which were rejected. The defendant played a pornographic movie and at some stage left the house to purchase confectionary, cigarettes and alcohol for the girls. When the defendant returned to his house, he took the victim to his bedroom and had sexual intercourse with her. It was conceded in sentencing submissions that the defendant knew that the victim had been drinking and that one of the girls had been vomiting from the effects of either cigarettes or alcohol. At some stage the defendant had been told by the neighbour that the girls were sexually experienced. After the act of sexual intercourse occurred, the victim remained at the defendant’s house with her friend and spent the following two or three nights at the neighbour’s house. The Defendant’s Personal Circumstances The defendant at the time of the offending was aged 44. He suffers from an intellectual impairment. Dr Jack White, a psychologist who examined the defendant for the purpose of sentencing estimated his IQ to be in the range between 70 to 80. DrWhite described the defendant as an emotionally unstable individual with limited personal skills and low intellectual ability with behavioural problems of impulsivity and paedophilic interests. In Dr White’s assessment the defendant has the problem solving skills equivalent to those of an average five and a half year old child. The defendant had a troubled and difficult childhood. He suffered severe and prolonged sexual abuse by his father. He left school after primary school and was functionally illiterate. Apart from a brief period of work as a bricklayer and other work experience, the defendant has not been employed and has been on a disability pension since the age of 16. The defendant’s father died in 1995. He was very close to his mother, whose death in 2007 was described in the psychologist’s report as a devastating event for the defendant.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The court should be wary not to impede rehabilitation which has been shown to have taken place by imposing an immediate custodial sentence.[11] This is a compelling reason in our view to exercise the discretion suspend the sentence.[11] See Duncan v R (1983) 47 ALR 746 at 749; R v Bell [1982] Qd R 216 at 220-221; R v Van Der Horst [2006] SASC 243 at [35].Conclusion For these reasons we would grant permission to the Director to appeal. We would allow the appeal and fix a head sentence of three years. We would fix a non-parole period of 18 months. However, we consider that in the circumstances there is good reason to suspend the term of imprisonment on the same conditions as allowed by the District Court Judge.

Ratio Decidendi

Legal Principle Established

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