R v SP

Case [2004] ACTCA 16 20 August 2004

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R v SP
[2004] ACTCA 16 (20 August 2004)

CRIMINAL LAW – sentencing – respondent pleaded guilty to six counts of sexual intercourse with a person under the age of 16 years – whether sentence manifestly inadequate in the circumstances – remorse – delay in the prosecution of the offence – exceptional factors – suspension of sentence.

Crimes Act 1900 (ACT), s 341, s 343 s 345, s 403

Sentencing Act 1995 (WA)

Sentencing Act 1991 (Vic), s 5

Everett v The Queen (1994) 181 CLR 295

House v The King (1936) 55 CLR 499

Lowndes v The Queen (1999) 195 CLR 665

Dinsdale v The Queen (2000) 202 CLR 321

Wong v The Queen (2001) 207 CLR 584

R v Cobb (1999) 84 FCR 450

Papazisis & Bird (1991) 51 A Crim R 242

R v Carroll, unreported, Court of Criminal Appeal, Victoria, 15 October 1990

R v Lappas (2003) 152 ACT R 7

R v Clarke [1996] 2 VR 520

R v Brewer [2004] ACTCA 10, unreported, 1 June 2004

R v Webster, sentencing remarks, unreported, ACT Supreme Court, SCC 50/01, 3 August 2001

Crawley v The Queen (1981) 55 FLR 463

R v Whyte [2004] VSCA unreported, 13 February 2004

R v Thompson (1988) 37 A Crim R 97

R v Todd [1982] 2 NSWLR 517

Mill v The Queen (1988) 166 CLR 59

The Queen v P (1992) 39 FCR 276

Suspended Sentences and Preventative Sentences: Illusionary Evils and Disproportionate Punishments, Mr Bagaric, 1999, Vol 22, UNSW Law Journal, 535

R v Liddington (1997) 18 WAR 394

Law Reform Commission of New South Wales, Discussion Paper No 33, 1996

Ryan v The Queen (2001) 206 CLR 267
R v Law (1995) 84 A Crim R 142
R v D’Arcy (2001) 122 A Crim R 268
R v Wirth (1976) 14 SASR 291
R v Carpentieri (2001) 81 SASR 164
R v Edwards (1996) 90 A Crim R 510
Power v R (1974) 131 CLR 623
R v Hillsley (1982) 34 FCR 148

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 34 - 2003
No. SCC 93 of 2003

Judges: Higgins CJ, Gray & Gyles JJ
Court of Appeal of the Australian Capital Territory
Date: 20 August 2004

IN THE SUPREME COURT OF THE       )          No. ACTCA 34 - 2003
  )          No. SCC 93 of 2003
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:R
Appellant

AND:SP
Respondent

ORDER

Judges:  Higgins CJ, Gray & Gyles JJ
Date:  20 August 2004
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 34 - 2003
  )          No. SCC 93 of 2003
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:R
Appellant

AND:

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 SP

Details

AGLC: R v SP [2004] ACTCA 16
Case: [2004] ACTCA 16
Decision Date: 20 August 2004

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against the sentence imposed on the respondent, SP, who had pleaded guilty to six counts of sexual intercourse with a person under the age of 16 years. The appeal concerned whether the sentence was manifestly inadequate in the circumstances.

The central legal issue before the court was whether the sentencing judge erred in imposing a sentence that was demonstrably too lenient, considering the nature of the offences, the respondent's remorse, the significant delay in the prosecution, and any other exceptional factors that might justify the suspension of the sentence.

The court considered the principles of sentencing for such offences, including the need for deterrence and the protection of children. It weighed the mitigating factors presented, such as the respondent's remorse and the impact of the delay on the respondent's life and the evidence. The court ultimately found that the sentencing judge had properly taken into account all relevant considerations and that the sentence imposed, including its suspension, was not manifestly inadequate.

The appeal was therefore dismissed.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v SP [2004] ACTCA 16

Most Recent Citation

DPP v Ellis [2005] VSCA 105

Cases Citing This Decision

Director of Public Prosecutions v Hyatt [2025] ACTSC 103
Citation 1

…ave discussed the principles concerning rehabilitation and delay at length in R v Carpenter [2022] ACTSC 6 from [67] to [73]. Relevantly, in R v SP [2004] ACTCA 16; 149 A Crim R 48, Gray J observed at [34]-[35], referring to R v Todd [1982] 2 NSWLR 517, the following: The consequence was that over time, the respon…
R v Merrilees (No 2); Director of Public Prosecutions v Merrilees [2024] ACTSC 364
Citation 2

…lees (Unreported, Australian Capital Territory Supreme Court, Higgins CJ, 11 June 2013) R v Nchouki [2022] ACTSC 227 R v Pahl [2022] ACTSC 113 R v SP [2004] ACTCA 16; 149 A Crim R 48 R v Todd [1982] 2 NSWLR 517 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Verdins [2007] VSCA 102; (2007) 16 VR 240 Sayer-Jones v Th…
Director of Public Prosecutions v Collier [2024] ACTSC 340
Citation 3

…7 A Crim R 159 R v Millwood [2012] NSWCCA 2 R v Nguyen [2018] ACTSC 146 R v Rahman [2021] ACTSC 257 R v Schwabegger [1998] 4 VR 649; 38 ATR 30 R v SP [2004] ACTCA 16; 149 A Crim R 48 R v Todd [1982] 2 NSWLR 517 R v Toumo'ua [2017] ACTCA 9;12 ACTLR 103 R v UG [2020] ACTCA 8; 281 A Crim R 273 R v Wieland [2020] ACTS…
Palmer v Tasmania [2024] TASCCA 6
Citation 4 (Para 95)

…elay suggests favourable prospects of rehabilitation. See R v Whyte [2004] VSCA 5, 7 VR 397 at [25], R v Pickard [2011] SASCFC 134 at [95] and R v SP [2004] ACTCA 16 at [31]-[35].…
R v Bower (No 2) [2022] ACTSC 388
Citation 5

…R v SP [2004] ACTCA 16 R v Stacker [2020] ACTCA 34 R v Todd [1982] 2 NSWLR 517…
R v Carpenter [2022] ACTSC 6
Citation 6 (Para 1)

…In R v SP [2004] ACTCA 16; 149 A Crim R 48, Gray J observed at [34]-[35]…
R v Bower [2022] ACTSC 382
Citation 7 (Para 1)

…ch success, save for most recently when she has completed courses in custody. This can be mitigating: R v Todd [1982] 2 NSWLR 517 at 519–20; R v SP [2004] ACTCA 16; 149 A Crim R 48 at 56–7; [31]–[35].…
SP v The Chief Police Officer [2020] ACTSC 114
Citation 8

…2 Holland v Commissioner of Police [2019] SASC 141 K, MP v Commissioner of Police [2017] SASC 38 L, R v Commissioner of Police [2018] SASC 181 R v SP [2004] ACTCA 16 W, IB v Commissioner of Police [2018] SASC 87…
DPP v Ellis [2005] VSCA 105
Citation 9 (Para 1)

…ment and the Court of Appeal was concerned only with the question whether the sentences were manifestly excessive. [27]Compare R. v. SP [2004] ACTCA 16 at [6].…
Regina v Campbell [2005] NSWCCA 125
Citation 10

…LEGISLATION CITED: Crimes Act 1900 CASES CITED: Law; ex parte A-G (1995) 84 A. Crim. R. 142 SP [2004] ACTCA 16 CDH [2002] NSWCCA 103 AJC [2001] NSWCCA 388 ICC [2002] NSWCCA 119 MA [2001] NSWCCA 30 VJV [2004] NSWCCA 415 PARTIES: REGINA v. CAMPBELL, Ian Stanley Bruce FILE NUMBER(S): CCA 2004/3304 COUNSEL: Crown: D.…
R v Booth [2004] ACTCA 21
Citation 11 (Para 1)

…een imposed in the first place: R v Clarke [1996] 2 VR 520 at 522; Cruse v Treminio [2001] ACTSC 59 at [18]; R v Relph [2002] ACTCA 6 at [23]; R v SP [2004] ACTCA 16 at [21] and [78].…

See all citing cases →

Cases Cited

R v Todd [2024] NZHC 897
Citation 1

…ather the fault of the prosecuting authority or the system of the administration of justice (cf R v Miceli (1997) 94 A Crim R 327; R v Todd (1982) 2 NSWLR 517 at 519). Where, however, the delay cannot be sheeted home to the prosecution or the system, but can be fairly attributed to the accused, such as absconding fro…
R v Law [2020] NSWDC 724
Citation 2 (Para 1)

…In R v Law (1995) 84 A Crim R 142, the Queensland Court of Appeal considered an appeal against sentence where the respondent had pleaded guilty to one count of attempted sodomy, 11 counts of sodomy and 10 counts of dealing with a boy under the age of 14 years, the offences occurring between 1962 and 1968. The com…
R v Osenkowski [2005] SASC 142
Citation 3

…ife, or to make some recompense for the wrong done, or should have the benefit of the mercy to which King CJ referred in Osenkowski [ R v Osenkowsk i (1982) 30 SASR 212], or for some other sufficient reason should have this particular avenue opened to him, provided the conditions of the suspension are observed. These…
R v Brewer [2004] ACTCA 10
Citation 4 (Para 1)

…rke [1996] 2 VR 520 at 522. I would likewise accept the principles set out in that case as applicable to a case like the present (see also R v Brewer [2004] ACTCA 10, unreported, 1 June 2004 at [3] – [5]).…
Lappas v The Queen [2004] HCATrans 46
Citation 5 (Para 1)

…In R v Lappas (2003) 152 ACTR 7, Cooper and Weinberg JJ referred to the statement of principles governing Crown appeals in R v Clarke [1996] 2 VR 520 at 522. I would likewise accept the principles set out in that case as applicable to a case like the present (see also R v Brewer [2004] ACTCA 10, unreported, 1 June 2…
R v P [2002] HCATrans 494
Citation 6 (Para 1)

…In respect of the principles to be applied in the ACT, the Full Court of the Federal Court, Burchett, Miles and O’Loughlin JJ, in The Queen v P (1992) 39 FCR 276, said (at 285) –…
Wong v The Queen [2001] HCA 64
Citation 7 (Para 1)

…g (1936) 55 CLR 499 at 505; Lowndes v The Queen (1999) 195 CLR 665 at 671-672 and Dinsdale v The Queen (2000) 202 CLR 321 at 334. In Wong v The Queen (2001) 207 CLR 584 Gaudron, Gummow and Hayne JJ observed at [58] –…
Ryan v The Queen [2001] HCA 21
Citation 8 (Para 1)

…y and previous good character. It is well recognised that previous good character has a limited role to play in cases of this kind ( Ryan v The Queen (2001) 206 CLR 267). Given that the maximum penalty for each offence was 14 years imprisonment, it would have been virtually inevitable that the combined effect of the…
Dinsdale v The Queen [2000] HCA 54
Citation 9 (Para 1)

…well established: for example, House v The King (1936) 55 CLR 499 at 505; Lowndes v The Queen (1999) 195 CLR 665 at 671-672 and Dinsdale v The Queen (2000) 202 CLR 321 at 334. In Wong v The Queen (2001) 207 CLR 584 Gaudron, Gummow and Hayne JJ observed at [58] –…
Saibai People v State of Queensland [1999] FCA 158
Citation 10 (Para 1)

…itute for a wholly suspended term of imprisonment the requirement that the respondent serve a short part thereof as actual imprisonment (see R v Cobb (1999) 84 FCR 450). It may also be noted that in the Australian Capital Territory there is no legislative requirement that, in the case of appeals against sentence, th…
Postiglione v the Queen [1997] HCA 26
Citation 11 (Para 1)

…e in the circumstances of the case’. The suspension of a sentence under s 403 Crimes Act is not an ‘available penalty’. In R v Liddington (1997) 18 WAR 394 at 402, in respect of this matter, Ipp J commented –…
Everett v the Queen [1994] HCA 49
Citation 12 (Para 1)

…In Everett v The Queen (1994) 181 CLR 295 Brennan, Deane, Dawson and Gaudron JJ said at 299-300 –…
Jago v District Court (NSW) [1989] HCA 46
Citation 13

…e of such delay. See for example Barker v Wing 407 US 514; US v Marion 404 US 307; Mills (1986) 26 CCC (3d) 481. See also Jago v District Court (NSW) (1989) 168 CLR 23; 41 A Crim R 307; Braham (1994) 73 A Crim R 353, by contrast, is an example of a case in which the offender, because initially a nolle prosequi had b…
Mill v The Queen [1988] HCA 70
Citation 14 (Para 1)

…This approach was approved by the High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ in Mill v The Queen (1988) 166 CLR 59). Both those cases were concerned with sentencing an offender who comes to be sentenced many years after the commission of an offence, because during the intervening period he has been ser…
Crawley v The Queen [1981] FCA 116
Citation 15 (Para 1)

…The present case is not one of delay on the part of the prosecuting authorities such as in Crawley v The Queen (1981) 55 FLR 463 where the cause of the delay was not explained by the prosecuting authorities. There can be no doubt that in a case where fault can be attributed to the offender then it would not be appro…
Power v The Queen [1974] HCA 26
Citation 16 (Para 1)

…passages reflect a long-established approach to the rather similar issue of setting a non-parole period as determined by the High Court in Power v R (1974) 131 CLR 623 and followed ever since. A non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime c…
House v R [1936] HCA 40
Citation 17 (Para 1)

…The principles governing appeals against an exercise of discretionary judgment are also well established: for example, House v The King (1936) 55 CLR 499 at 505; Lowndes v The Queen (1999) 195 CLR 665 at 671-672 and Dinsdale v The Queen (2000) 202 CLR 321 at 334. In Wong v The Queen (2001) 207 CLR 584 Gaudron, Gummo…
Lowndes v The Queen [1999] HCA 299
Citation 18 (Para 1)

…es governing appeals against an exercise of discretionary judgment are also well established: for example, House v The King (1936) 55 CLR 499 at 505; Lowndes v The Queen (1999) 195 CLR 665 at 671-672 and Dinsdale v The Queen (2000) 202 CLR 321 at 334. In Wong v The Queen (2001) 207 CLR 584 Gaudron, Gummow and Hayne JJ observ…
[2001] SASC 420 [2001] SASC 420
Citation 19 (Para 1)

…The problems in taking account of hardship to family have been examined in a number of cases including R v Wirth (1976) 14 SASR 291; R v Carpentieri (2001) 81 SASR 164; R v Edwards (1996) 90 A Crim R 510. In my opinion, the submission by the Director that there was an error in principle involved in regarding these f…
Brisbane South Regional Health Authority v Taylor 407 US 514
Citation 20

…ght to a speedy trial is constitutionally or legislatively guaranteed, proceedings may be stayed because of such delay. See for example Barker v Wing 407 US 514; US v Marion 404 US 307; Mills (1986) 26 CCC (3d) 481. See also Jago v District Court (NSW) (1989) 168 CLR 23; 41 A Crim R 307; Braham (1994) 73 A Cr…
404 US 307 404 US 307
Citation 21

…constitutionally or legislatively guaranteed, proceedings may be stayed because of such delay. See for example Barker v Wing 407 US 514; US v Marion 404 US 307; Mills (1986) 26 CCC (3d) 481. See also Jago v District Court (NSW) (1989) 168 CLR 23; 41 A Crim R 307; Braham (1994) 73 A Crim R 353, by contrast, i…
House v The King 63 WN 176
Citation 22 (Para 1)

…The principles governing appeals against an exercise of discretionary judgment are also well established: for example, House v The King (1936) 55 CLR 499 at 505; Lowndes v The Queen (1999) 195 CLR 665 at 671-672 and Dinsdale v The Queen (2000) 202 CLR 321 at 334. In Wong v The Queen (2001) 207 CLR 584 Gaudron, Gummow and…

Legislation Cited

Crimes Act 1900 (ACT) 341
2 mentions (from Para 1)
Sentencing Act 1991 (Vic) 5
2 mentions (from Para 1)
Sentencing Act 1995 (WA)
1 mention (from Para 1)