R v Starr - [1999] WASCA 119

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: R -v- STARR [1999] WASCA 119

CORAM: MALCOLM CJ
IPP J
WHITE J

HEARD: 2 AUGUST 1999

DELIVERED : 2 AUGUST 1999

FILE NO/S: CCA 75 of 1999

BETWEEN: THE QUEEN
Appellant
AND
PATRICK JOHN STARR
Respondent

Catchwords:

Criminal law - Sentencing - Crown appeal against sentence of 2 years' imprisonment for threat to kill - Offence in worst category of its kind - Occurred in context of sexual assault, deprivation of liberty and threat to kill put into action - Taking into account early plea, appropriate sentence 5 years cumulative on other sentences of 5 years

Legislation:

Criminal Code, s338B

Result:

Crown appeal allowed

Representation:

Counsel:

Appellant: Mr R E Cock QC & Ms C R Campbell
Respondent: Mr R W Richardson

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: Aboriginal Legal Service

Case(s) referred to in judgment(s):

Everett v The Queen (1994) 181 CLR 295
R v Grein [1989] WAR 178
R v Lucas (1995) 78 A Crim R 40
R v Turner, unreported, CCA SCt of WA, Library No 920662; 4 December 1992

Case(s) also cited:

Nil

MALCOLM CJ: This is a Crown appeal against sentence. On 13 April 1999 the respondent pleaded guilty to two counts of sexually penetrating a child under the age of 16 years when he well knew that the child was his de facto child. These were offences under s 329(2) of the Criminal Code.
The sexual penetrations involved the respondent penetrating the vagina of a 14-year-old child with his penis. The respondent was sentenced to 5 years' imprisonment for each of these counts to be served concurrently with each other. The learned sentencing Judge reduced the sentence from a starting point of 7 years to one of 5 years' imprisonment in each case due to the respondent's plea of guilty.
The respondent also pleaded guilty to committing four offences against another complainant, a 9-year-old girl. The complainant was sleeping in a bunk bed with two other girls, one of whom was the 11-year-old daughter of the respondent. The complainant woke up to find that she had been transferred to a double bed in the same room. The respondent removed her shorts. She was not wearing underpants. He then removed the clothing from his lower body and rubbed his erect penis against the complainant's leg. This was the subject of count 3 on the indictment; namely, a count of indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code, the maximum penalty for which is imprisonment for 10 years.
Following the commission of that offence, the complainant became upset and the respondent walked her out of the house. He then picked her up, put his hand over her mouth and ran towards bushland across the road. The complainant started screaming and slipped from the respondent's grasp. She ran back toward the house but…

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 Starr

Details

AGLC: R v Starr [1999] WASCA 119
Case: [1999] WASCA 119
Decision Date: 2 AUGUST 1999

CaseChat Overview and Summary

The case of R v Starr was heard in the High Court of Australia, involving the Crown appealing a sentence imposed on the appellant for a threat to kill. Starr was found guilty of threatening to kill a person, an offence occurring in the context of a sexual assault and deprivation of liberty. The original sentence imposed was two years' imprisonment, which the Crown deemed insufficient given the severity of the crime. The nature of the dispute was the adequacy of the sentence in light of the circumstances and the appellant's early plea.

The primary legal issue before the court was whether the original sentence was appropriate in the context of the crime's severity and the mitigating factor of the appellant's early plea. The Crown argued that the threat to kill, which was put into action, warranted a harsher sentence, given it was in the worst category of its kind. The court had to balance the severity of the offence, which involved a combination of sexual assault, deprivation of liberty, and a threat to kill, with the mitigating factor of the appellant's early plea. The court also had to consider the cumulative effect of the sentence on the appellant's overall punishment for related offences.

The High Court found that while the original sentence took into account the mitigating factor of an early plea, it did not adequately reflect the severity of the threat to kill and its context. The court noted that the threat to kill was not only in the worst category of its kind but also occurred in the context of a sexual assault and deprivation of liberty, making it particularly egregious. The court concluded that an appropriate sentence should be five years' imprisonment, cumulative on the other sentences of five years. This decision emphasised the need to impose a sentence that appropriately reflected the seriousness of the crime while also considering the mitigating factor of an early plea.

Orders