Supreme Court of South Australia
(Court of Appeal: Criminal)
R v STAIN
[2021] SASCA 70
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Bleby and the Honourable Justice Blue)
8 July 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
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 - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Application for permission to appeal against sentence by the Director of Public Prosecutions (SA).
The respondent pleaded guilty to one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The offending occurred when the respondent was a high school teacher at a school that the complainant attended in the early 1980s.
The respondent was sentenced on the basis that he genuinely cared for the complainant and that there was no predation in his offending. The sentencing Judge also made reference in her remarks to the respondent’s rehabilitation and the delay between the offending and the date of sentence.
The sentencing Judge identified a starting point of six and a half years imprisonment, which was reduced by 40 per cent on account of the respondent’s early guilty plea. The respondent was sentenced to a head sentence of three years, 10 months and 25 days imprisonment, with a non-parole period of 14 months.
The Director of Public Prosecutions seeks permission to appeal on the basis that the head sentence and the non-parole period, as a proportion of the head sentence, are manifestly inadequate.
Held (by the Court), granting permission to appeal and allowing the appeal:
1. The sentencing Judge did not adequately take into account circumstances of the offending which justified, and indeed required, strict adherence to the sentencing standard set in R v D.
2. It was not appropriate for the sentencing Judge to attribute significant weight to considerations of delay and rehabilitation in circumstances where the delay in reporting was due to the nature of the offending.
3. The sentencing process has miscarried, resulting in a manifestly inadequate sentence and non‑parole period.
4. It is necessary for this Court to intervene in order to maintain the sentencing standard for offences of this kind and to maintain public confidence in the administration of justice.
5. The sentence is set aside and the respondent is re-sentenced. From a starting point of 10 years, the respondent is sentenced to six years imprisonment, with a non-parole period of three years and six months.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Sentencing Act 2017 (SA) s 68, referred to.
R v D (1997) 69 SASR 413, applied.
Everett v The Queen (1994) 181 CLR 295; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Green v…
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- AGLC
- R v Stain [2021] SASCA 70
- Case
- [2021] SASCA 70
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the sentencing judge had adequately considered the relevant sentencing principles for these serious offences, particularly in light of established sentencing standards, and whether the sentence imposed was manifestly inadequate. The Court was required to determine if the sentencing judge had given undue weight to factors such as delay in reporting and rehabilitation, and if intervention was necessary to uphold sentencing standards and public confidence.
The Court of Appeal reasoned that the sentencing judge had failed to give sufficient weight to the gravity of the offending and the sentencing standard established in *R v D*. It found that attributing significant weight to delay and rehabilitation was inappropriate given the nature of the sexual abuse, which often leads to delayed reporting. Consequently, the Court concluded that the sentencing process had miscarried, resulting in a sentence that was manifestly inadequate. The Court intervened to maintain the sentencing standard for such offences and public confidence in the justice system.
The Court of Appeal granted permission to appeal and allowed the appeal, setting aside the original sentence. The respondent was re-sentenced to six years imprisonment, with a non-parole period of three years and six months.
Orders
Orders of the court
Held (by the Court), granting permission to appeal and allowing the appeal:
1. The sentencing Judge did not adequately take into account circumstances of the offending which justified, and indeed required, strict adherence to the sentencing standard set in R v D.
2. It was not appropriate for the sentencing Judge to attribute significant weight to considerations of delay and rehabilitation in circumstances where the delay in reporting was due to the nature of the offending.
3. The sentencing process has miscarried, resulting in a manifestly inadequate sentence and non‑parole period.
4. It is necessary for this Court to intervene in order to maintain the sentencing standard for offences of this kind and to maintain public confidence in the administration of justice.
5. The sentence is set aside and the respondent is re-sentenced. From a starting point of 10 years, the respondent is sentenced to six years imprisonment, with a non-parole period of three years and six months.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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