R v Slater - [2005] SASC 423

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SLATER
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Debelle and The Honourable Justice Besanko)
10 November 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCING
Appeal against sentence – one count indecent assault – five counts unlawful sexual intercourse by schoolmaster – two victims aged 16 and 17 years – appellant pleaded guilty – sentenced to six years’ imprisonment and non-parole period of three and a half years.
Held, allowing appeal: judge failed to follow approach to sentencing outlined in R v Major (1998) 70 SASR 488 – did not allocate notional sentence in respect of each offence – did not indicate how single sentence arrived at – factors warranting leniency – appellant re-sentenced to five and a half years’ imprisonment and non-parole period of 2 years and 9 months.
Criminal Law Consolidation Act 1935 s 56, s 49; Criminal Law (Sentencing) Act 1988 s 18A, referred to.
R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v B, RWK (2005) 91 SASR 200; R v E, AD [2005] SASC 332, considered.

R v SLATER
[2005] SASC 423
Court of Criminal Appeal: Duggan, Debelle & Besanko JJ

DUGGAN J. In my view the appeal should be allowed and the sentence set aside. I agree that the appellant should be re-sentenced in accordance with the orders proposed by Besanko J. I agree with the reasons to be delivered by Besanko J.
DEBELLE J. I agree with the substance of the reasons of Besanko J and with the orders he proposes.
BESANKO J. This is an appeal against sentence. The appellant was charged on information with one count of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (“CLCA”) and five counts of unlawful sexual intercourse by a schoolmaster contrary to s 49(5) of the CLCA. There were two victims of the offending, AM and JA. The first two counts, namely, indecent assault and unlawful sexual intercourse by a schoolmaster, involved AM, and the remaining four counts of unlawful sexual intercourse by a schoolmaster involved JA. The maximum penalty for the offence of indecent assault is imprisonment for eight years in the case of a victim aged 12 years or older. The maximum penalty for the offence of unlawful sexual intercourse by a schoolmaster is imprisonment for seven years.
The appellant pleaded guilty to the six counts in the information and a judge of the District Court imposed a head sentence of six years’ imprisonment and a non-parole period of three and a half years. The appellant appeals against that sentence. A judge of this Court has granted leave to appeal.
The circumstances of the offending
AM was born on 6 August 1986. The offending involving her occurred, in the case of count one,…

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 Slater

Details

AGLC: R v Slater [2005] SASC 423
Case: [2005] SASC 423
Decision Date: 10 November 2005

CaseChat Overview and Summary

In the case of R v Slater, the appellant appealed against the sentence imposed by the trial judge, who had sentenced the appellant to six years' imprisonment with a non-parole period of three and a half years for one count of indecent assault and five counts of unlawful sexual intercourse by a schoolmaster. The victims were aged 16 and 17 years. The appellant had pleaded guilty to the charges.

The court had to determine whether the trial judge had correctly followed the approach to sentencing outlined in R v Major (1998) 70 SASR 488, and whether the sentence was appropriate in all the circumstances. The court found that the trial judge had not followed the approach in R v Major, as the judge had not allocated a notional sentence in respect of each offence, nor had the judge indicated how the single sentence arrived at was reached. The court also noted that there were factors warranting leniency.

The court allowed the appeal and set aside the sentence imposed by the trial judge. The court found that an appropriate sentence for the offending was a term of imprisonment of five and a half years with a non-parole period of two years and nine months. The court considered that the trial judge had not adequately taken into account the factors warranting leniency, and that the sentence imposed was too severe. The court fixed the penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, and the sentence was to commence from the date fixed by the trial judge.

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

DUGGAN J DEBELLE J BESANKO J

Having regard to the matters which I have identified, I think an appropriate sentence for the offending is a term of imprisonment of 5 years and 6 months. This is the term I have reached after reducing a term of 7 years and 3 months by reason of the appellant’s pleas of guilty. I have calculated the period of 7 years and 3 months by notionally allocating 9 months for the offence of indecent assault involving AM, 18 months for the offence of unlawful sexual intercourse by a schoolmaster involving AM, 2 years for the two counts of unlawful sexual intercourse by a schoolmaster involving JA that occurred on the same occasion and 18 months for each of the other two counts of unlawful sexual intercourse by a schoolmaster involving JA. Again having regard to the matters which I have identified, I think a non-parole period of 2 years and 9 months is appropriate.Conclusion I would allow the appeal and set aside the sentence imposed by the judge. I would fix one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 of a term of imprisonment of 5 years and 6 months and I would fix a non-parole period of 2 years and 9 months. The sentence is to commence from the date fixed by the judge, namely, 29 March 2005.

Ratio Decidendi

Legal Principle Established

Established by: DUGGAN J, DEBELLE J, BESANKO J

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